PREFACE 

Trespass  and  Trover.  Some  of  these  actions  are 
statutory  and  do  not  belong  to  the  old  common  law. 

A  declaration  (also  known  as  Narr.t  an  abbrevia- 
tion of  the  word  narratio),  is  the  plaintiff's  statement 
of  a  claim,  being  a  narrative  of  the  facts  on  which 
he  relies  to  sustain  his  cause  of  action.  The  form  of 
a  declaration  and  the  shorthand  notes  for  it,  are 
shown  in  Lesson  Twenty  of  the  course,  together  with 
the  forms  for  demurrers,  pleas,  etc.  The  shorthand 
notes  for  the  various  declarations  are  not  shown  in 
this  book,  the  space  being  utilized  by  practical  exam- 
ples of  as  many  different  causes  of  action  as  it  is 
possible  to  give. 

As  equity  pleadings  all  follow  the  same  general 
forms,  to  illustrate  them  fully  there  are  given  the 
pleadings  from  the  inception  of  a  cause  in  equity  to 
its  completion  in  the  reviewing  court.  These  are  fully 
illustrated  by  shorthand  notes  which  may  be  referred 
to  in  order  to  confirm  or  correct  shorthand  outlines 
made  by  you. 

The  author  feels  that  if  proper  work  is  done  on  the 
forms  given  in  this  book,  little  or  no  difficulty  will  be 
experienced  in  performing  the  work  in  a  law  office. 
Each  pleading  should  be  carefully  analyzed  and  taken 
in  shorthand  from  dictation  a  great  many  times,  in 
order  that  the  legal  phraseology  may  be  fully 
mastered. 

There  are  two  classes  of  stenographers  who  will 
have  special  interest  in  a  work  devoted  to  law  office 
stenography.  First,  will  be  those  who  accept  employ- 
ment in  a  law  office  as  a  means  of  livelihood.  They 
will  find,  in  most  instances,  that  the  surroundings  are 

8 


PREFACE 

pleasant,  the  work  interesting,  and  the  pay  fairly  re- 
munerative. Second,  are  those  stenographers  who  in- 
tend to  use  their  knowledge  of  shorthand  as  a  means 
for  paying  their  expenses,  and  at  the  same  time 
affording  actual  experience,  while  they  are  studying 
with  the  intention  of  making  law  their  profession. 
Many  who  have  the  court  reporter's  office  desk  as 
their  ultimate  goal,  first  secure  work  in  a  law  office  in 
order  to  master  the  legal  terminology  necessary  in 
expert  court  reporting  work. 

That  many  stenographers  utilize  their  position  in 
a  law  office  as  an  aid  to  the  study  of  law  is  evidenced 
by  the  very  large  percentage  of  lawyers  who  are 
stenographers.  If  you  desire  to  use  your  shorthand 
in  order  to  defray  your  expenses  while  obtaining  a 
knowledge  of  the  subject  of  law,  a  position  in  a  law 
office  will  materially  aid  you  in  your  study.  In  the 
larger  cities  there  are  night  law  schools  at  which  the 
theory  of  law  can  be  secured.  In  fact,  it  is  not  neces- 
sary to  attend  a  school  in  order  to  become  a  lawyer. 
There  are  many  excellent  correspondence  courses  in 
law  which  give  a  theoretical  knowledge  of  the  subject. 
The  requirements  in  most  states  recognize  study  in  a 
law  office  for  a  prescribed  length  of  time  as  sufficient 
to  enable  the  student  to  take  an  examination  which, 
if  passed,  admits  him  to  practise.  I  am  a  lawyer  and 
secured  my  knowledge  of  law  while  studying  in  my 
brother's  office,  and  later  in  an  office  in  Chicago. 
Perhaps  I  am  prejudiced,  but  I  believe  that  the  blend- 
ing of  the  practical  knowledge  obtained  in  a  law  office 
with  the  theoretical  knowledge  obtained  in  the  books 
is  of  greater  value  and  enables  one  to  accomplish 

9 


THE  LIBRARY 

OF 

THE  UNIVERSITY 
OF  CALIFORNIA 

LOS  ANGELES 


BO 

Li, 


HOW   TO   DO 
LAW   OFFICE  STENOGRAPHY 


HOW  TO  DO 
LAW  OFFICE  STENOGRAPHY 


By   ROBERT    F.    ROSE 

Author  of  "The  Robert  F.  Rose  Expert  Shorthand  Course"  "How   to 

Become    a    Private    Secretary,"    "How    to    Construct    Shorthand 

Phrases,"  "How  to  Become  an  Expert  Court  Reporter,"  etc. 


Price,    $2.50 


FUNK    &    WAGNALLS    COMPANY 

PUBLISHERS 

NEW   YORK    AND   LONDON 
1917 


COPYKIGHT,     1917,    BY 

ROBERT   F.   ROSE 

[Printed  in  the  United  States  of  America] 


Copyright  under  the  Articles  of  the  Copyright  Convention  of  the 
Pan-American  Republics  and  the  United  States,  August  11,  1910 


CONTENTS 


PAGE 

PREFACE   7 

COMMON  LAW  PLEADINGS 11 

Assumpsit       14 

Declaration  in  Assumpsit  (Form) 15 

Covenant 16 

Declaration  in  Covenant  (Form)      .  .      .  .      .  .      .  .  16 

Debt 18 

Declaration  in  Debt  (Form)      .  .      .  .  18 

Detinue 24 

Declaration  in  Detinue  (Form) 24 

Case 25 

Declaration  in  Trespass  on  the  Case  (Form) . .      .  .  26 

£     Certiorari 30 

**     Petition  (Form) 31 

^     Ejectment       32 

*>j     Declaration  in  Ejectment  (Form)     33 

m* 

tj     Garnishment 34 

Affidavit  in  Garnishment  (Form)      34 

<j     Interrogatories  in  Garnishment  (Form) 35 

0     Habeas  Corpus      36 

5      Petition  in  Habeas  Corpus  (Form) 36 

Mandamus     39 

Petition  in  Mandamus  (Form) 39 

3     Quo  Warranto       44 

p      Petition  in  Quo  Warranto  (Form) 45 

Scire  Facias 47 

Praecipe  (Form) 48 

Writ  of  Scire  Facias 49 

Trespass - 50 

Declaration  in  Trespass   (Form)      51 

5 


CONTENTS 

PAGE 

Trover 55 

Declaration  in  Trover  (Form) 56 

EQUITY  PLEADINGS 58 

Bill  of  Complaint 62 

Answer 78 

Affidavits 100 

Replication 110 

Order      Ill 

Decree 112 

Assignment  of  Errors 114 

Designation  of  Record ' 116 

Transcript  and  Briefs 118 

Brief  for  Appellant 120 

Argument       130 

Brief  for  Appellee        144 

Statement  of  Facts      144 

Argument  on  First  Assignment  of  Error 154 

Argument  on  Second  Assignment  of  Error      . .      . .  170 

Argument  on  Third  Assignment  of  Error 178 

Conclusion      184 


PREFACE 

The  compilation  of  a  work  on  legal  pleadings  of  suffi- 
cient scope  to  enable  a  stenographer  intelligently  to 
perform  shorthand  work  in  a  law  office,  has  been  some- 
what difficult.  So  broad  is  the  subject,  and  so  multi- 
tudinous are  the  pleadings,  especially  in  common  law, 
that  to  digest  them  in  a  work  of  this  character,  in 
such  a  manner  as  to  make  them  at  all  comprehensive, 
is  a  considerable  task. 

As  stated  in  Lessons  Twenty  and  Twenty-one  of  the 
Eobert  F.  Rose  Expert  Shorthand  Course,  many  of  the 
states  have  abolished  the  distinction  between  common 
law  and  equity  pleadings,  and  have  substituted  what  is 
known  as  "code"  practise.  In  Wisconsin,  Iowa,  New 
York — in  fact,  in  most  of  the  states — the  latter  method 
prevails.  It  may  be  asked  why,  in  this  work,  no  forms 
of  pleadings  have  been  given  illustrative  of  code 
pleadings.  The  answer  is  that  one  who  has  a  knowl- 
edge of  common  law  and  equity  pleadings  will  have 
no  difficulty  with  the  simpler  code  pleadings.  The 
reverse  is  not  true,  for  one  who  knows  only  the  code 
practise  may  be  a  very  poor  pleader  at  common  law. 

Because  of  the  great  number  of  pleadings  at  com- 
mon law,  declarations  are  shown  in  the  ex  contractu 
actions  of  Assumpsit,  Covenant,  Debt  and  Detinue, 
and  in  the  ex  delicto  actions  of  Attachment,  Case, 
Caveat,  Vertiorari,  Ejectment,  Garnishment,  Habeas 
Corpus,  Mandamus,  Quo  Warranto,  Scire  Facias, 


PREFACE 

Trespass  and  Trover.  Some  of  these  actions  are 
statutory  and  do  not  belong  to  the  old  common  law. 

A  declaration  (also  known  as  Narr.,  an  abbrevia- 
tion of  the  word  narratio),  is  the  plaintiff's  statement 
of  a  claim,  being  a  narrative  of  the  facts  on  which 
he  relies  to  sustain  his  cause  of  action.  The  form  of 
a  declaration  and  the  shorthand  notes  for  it,  are 
shown  in  Lesson  Twenty  of  the  course,  together  with 
the  forms  for  demurrers,  pleas,  etc.  The  shorthand 
notes  for  the  various  declarations  are  not  shown  in 
this  book,  the  space  being  utilized  by  practical  exam- 
ples of  as  many  different  causes  of  action  as  it  is 
possible  to  give. 

As  equity  pleadings  all  follow  the  same  general 
forms,  to  illustrate  them  fully  there  are  given  the 
pleadings  from  the  inception  of  a  cause  in  equity  to 
its  completion  in  the  reviewing  court.  These  are  fully 
illustrated  by  shorthand  notes  which  may  be  referred 
to  in  order  to  confirm  or  correct  shorthand  outlines 
made  by  you. 

The  author  feels  that  if  proper  work  is  done  on  the 
forms  given  in  this  book,  little  or  no  difficulty  will  be 
experienced  in  performing  the  work  in  a  law  office. 
Each  pleading  should  be  carefully  analyzed  and  taken 
in  shorthand  from  dictation  a  great  many  times,  in 
order  that  the  legal  phraseology  may  be  fully 
mastered. 

There  are  two  classes  of  stenographers  who  will 
have  special  interest  in  a  work  devoted  to  law  office 
stenography.  First,  will  be  those  who  accept  employ- 
ment in  a  law  office  as  a  means  of  livelihood.  They 
will  find,  in  most  instances,  that  the  surroundings  are 


PREFACE 

pleasant,  the  work  interesting,  and  the  pay  fairly  re- 
munerative. Second,  are  those  stenographers  who  in- 
tend to  use  their  knowledge  of  shorthand  as  a  means 
for  paying  their  expenses,  and  at  the  same  time 
affording  actual  experience,  while  they  are  studying 
with  the  intention  of  making  law  their  profession. 
Many  who  have  the  court  reporter's  office  desk  as 
their  ultimate  goal,  first  secure  work  in  a  law  office  in 
order  to  master  the  legal  terminology  necessary  in 
expert  court  reporting  work. 

That  many  stenographers  utilize  their  position  in 
a  law  office  as  an  aid  to  the  study  of  law  is  evidenced 
by  the  very  large  percentage  of  lawyers  who  are 
stenographers.  If  you  desire  to  use  your  shorthand 
in  order  to  defray  your  expenses  while  obtaining  a 
knowledge  of  the  subject  of  law,  a  position  in  a  law 
office  will  materially  aid  you  in  your  study.  In  the 
larger  cities  there  are  night  law  schools  at  which  the 
theory  of  law  can  be  secured.  In  fact,  it  is  not  neces- 
sary to  attend  a  school  in  order  to  become  a  lawyer. 
There  are  many  excellent  correspondence  courses  in 
law  which  give  a  theoretical  knowledge  of  the  subject. 
The  requirements  in  most  states  recognize  study  in  a 
law  office  for  a  prescribed  length  of  time  as  sufficient 
to  enable  the  student  to  take  an  examination  which, 
if  passed,  admits  him  to  practise.  I  am  a  lawyer  and 
secured  my  knowledge  of  law  while  studying  in  my 
brother's  office,  and  later  in  an  office  in  Chicago. 
Perhaps  I  am  prejudiced,  but  I  believe  that  the  blend- 
ing of  the  practical  knowledge  obtained  in  a  law  office 
with  the  theoretical  knowledge  obtained  in  the  books 
is  of  greater  value  and  enables  one  to  accomplish 


PREFACE 

better  results  than  does  the  mere  theory  secured  in 
any  law  school. 

The  average  graduate  of  a  law  school  has  little 
knowledge  of  the  actual  practise  of  law.  His  educa- 
tion has  been  confined  to  the  theoretical  side.  He 
has  not  had  the  advantage  which  a  stenographer  in 
a  law  office  receives  in  the  way  of  securing  the  actual 
work  by  means  of  the  dictation  of  pleadings  and  the 
other  legal  matters  daily  encountered.  The  stenog- 
rapher, through  his  daily  work  and  experience,  is 
absorbing  that  which  cannot  be  obtained  in  the 
schools.  The  theoretical  part  which  comes  from  the 
book  is  being  daily  demonstrated  to  him  by  the  every- 
day work  in  a  law  office.  This  combination  of  the 
theoretical  and  the  practical  results  is  the  very  best 
training  for  one  who  desires  to  be  skilled  in  the  law. 

But  in  order  to  get  into  a  law  office  you  must  make 
yourself  of  value  to  a  legal  firm.  While  shorthand 
will  aid  in  equipping  you  for  this  class  of  work,  it  is 
but  one  of  the  essentials;  it  is  necessary  for  you  to 
have  some  knowledge  of  legal  terminology  and  legal 
forms. 


10 


HOW  TO  DO 
LAW  OFFICE  STENOGRAPHY 


COMMON  LAW  PLEADINGS 

That  the  distinction  between  common  law  and 
equity  may  be  understood,  reference  is  made  to  Page 
Three,  Lesson  Twenty  of  the  Eobert  F.  Bose  Expert 
Shorthand  Course.  There  it  will  be  found  that  com- 
mon law  is  a  system  of  law  or  science  of  jurispru- 
dence gathered  chiefly  from  reports  of  adjudicated 
cases  and  the  works  of  commentators.  This  system 
has  prevailed  in  England  and  in  the  United  States 
of  America  in  contradistinction  to  other  great  sys- 
tems such  as  the  Roman  'or  civil  law.  It  consists  of 
those  principles,  usages,  and  rules  of  action,  applica- 
ble to  the  government  and  security  of  persons,  and  of 
property,  which  do  not  rest  for  their  authority  upon 
any  express  and  positive  declaration  of  the  will  of 
the  legislature. 

A  pleading  is  the  written  allegation  of  what  is 
affirmed  on  the  one  side  and  denied  on  the  other,  dis- 
closing to  the  court  or  jury  having  to  try  the  case, 
the  real  matter  in  dispute  between  the  parties.  Com- 
mon law  pleading  has  been  defined  as  "the  stating  in 
logical  and  legal  form  the  facts  which  constitute  the 
plaintiff's  cause  of  action  or  the  defendant's  ground 
of  defense;  it  is  the  formal  mode  of  alleging  that  on 
the  record  which  constitutes  the  support  or  the  de- 
fense of  the  party  in  evidence." 

The  pleadings  are  the  statements  of  the  parties,  in 

11 


HOW  TO  DO  LAW  OFFICE  STENOGRAPHY 

legal  and  proper  form,  of  the  causes  of  action  and 
grounds  of  defense.  They  were  formerly  made  by 
the  parties  or  their  counsel  orally,  in  open  court, 
under  the  control  and  direction  of  the  presiding  judge. 

The  term  " cause  of  action"  includes  every  fact 
necessary  for  the  party  bringing  the  suit  to  prove 
in  order  to  entitle  him  to  a  recovery,  and  every  fact 
that  the  defendant  has  a  right  to  traverse.  A  cause 
of  action  exists  when  facts  are  such  as  will  enable 
one  party  to  maintain  an  action  against  another. 
The  form  of  an  action  is  the  particular  mode  by 
which  a  right  is  required  to  be  enforced. 

The  common  law  forms  in  force  in  Illinois  are  "ex 
contractu"  (from  contract)  and  "ex  delicto"  (aris- 
ing in  consequence  of  a  crime,  misdemeanor,  or  tort). 

The  principal  common  law  "ex  contractu"  actions 
are: 

ASSUMPSIT  (Lat.,  he  has  undertaken) — a  form  of 
action  which  lies  for  the  recovery  of  damages  for  the 
non-performance  of  a  parole  or  simple  contract, 

COVENANT — an  action  arising  from  a  contract. 

DEBT — a  form  of  action  to  recover  a  sum  certain. 

DETINUE — to  recover  personal  chattels  from  one 
who  acquired  possession  of  them  lawfully,  but  retains 
them  without  right. 

The  "ex  delicto"  actions  are: 

CASE — to  recover  damages  for  injuries  for  which 
the  more  ancient  forms  of  action  will  not  lie. 

CERTIOKARI — a  writ  issued  by  a  superior  to  an  in- 
ferior court  of  record  or  other  tribunal  or  officer, 
exercising  a  judicial  function,  requiring  the  certifica- 
tion and  return  to  the  former  of  some  proceeding 

12 


HOW  TO  DO  LAW  OFFICE   STENOGRAPHY 

then  pending,  or  the  record  and  proceedings  in  some 
case  already  terminated,  in  a  case  where  the  proced- 
ure is  not  according  to  the  course  of  the  common  law. 

EJECTMENT — to  regain  possession  of  real  estate 
with  damages  for  unlawful  detention. 

GARNISHMENT — the  process  of  attaching  money  or 
goods  due  a  defendant  in  the  hands  of  a  third  party. 

HABEAS  CORPUS — a  writ  to  a  person  detaining  an- 
other and  commanding  him  to  produce  the  body  of 
that  person  at  a  certain  time  and  place,  with  the  day 
and  cause  of  his  detention,  to  do,  submit  to,  and  re- 
ceive whatsoever  the  court  or  judge  awarding  the 
writ  shall  consider  in  that  behalf. 

MANDAMUS — a  writ  issued  by  a  superior  court,  di- 
rected to  the  judge  and  parties  to  a  suit  in  an  in- 
ferior court,  commanding  them  to  cease  from  the 
prosecution  of  the  same,  because  of  lack  of  jurisdic- 
tion of  the  inferior  court. 

Quo  WARRANTO — a  writ  by  which  the  government 
commences  an  action  to  recover  an  office  or  franchise 
from  the  person  or  corporation  in  possession  of  it. 

SCIRE  FACIAS  (Lat.,  that  you  make  known) — a 
writ  founded  on  some  public  record;  a  writ  at  com- 
mon law  to  revive  a  judgment  or  to  obtain  satisfac- 
tion thereof. 

TRESPASS — to  recover  damages  for  injuries  sustained 
by  plaintiff  as  immediate  consequence  of  some  wrong 
done  forcibly  to  his  person  or  property. 

TROVER — to  recover  damages  against  one  who  has, 
without  right,  converted  to  his  own  use  personal  chat- 
tels in  which  the  plaintiff  has  a  general  or  special 
property. 

13 


HOW  TO  DO  LAW   OFFICE   STENOGRAPHY 


ASSUMPSIT 

As  stated,  Assumpsit  is  a  form  of  action  which  lies 
for  the  recovery  of  damages  for  the  non-performance 
of  a  parole  or  simple  contract. 

Special  Assumpsit  is  an  action  of  assumpsit 
brought  upon  an  express  contract  or  promise.  Gen- 
eral Assumpsit  is  an  action  of  assumpsit  brought 
upon  the  promise  or  contract  implied  by  law  in  cer- 
tain cases. 

A  promise  or  undertaking  on  the  part  of  the  de- 
fendant, either  expressly  made  by  him  or  implied  by 
the  law  from  his  action,  constitutes  the  gist  of  the 
action.  A  sufficient  consideration  for  the  promise 
must  be  averred  and  shown  although  it  may  be  im- 
plied by  the  law,  as  in  the  case  of  negotiable  promis- 
sory notes  and  bills,  where  a  consideration  is  pre- 
sumed to  exist  until  its  absence  is  shown. 

The  action  of  assumpsit  lies  for  money  had  and 
received;  for  money  lent;  for  money  found  to  be  due 
on  an  account  stated;  for  goods  sold  and  delivered, 
either  in  accordance  with  a  previous  request  or  where 
the  defendant  receives  and  uses  them;  for  work  per- 
formed and  materials  furnished  with  the  knowledge 
of  the  defendant  so  that  he  derives  a  benefit  there- 
from; for  the  use  and  occupation  of  the  plaintiff's 
premises  under  a  parole  contract,  express  or  implied, 
and  in  many  other  cases. 

The  following  form  for  a  declaration  in  assumpsit 
may  be  received  from  dictation  and  read  from  your 
shorthand  notes  very  frequently: 

14 


HOW  TO  DO  LAW   OFFICE   STENOGRAPHY 

State   of   Illinois,   ) 
County  of  Cook,     ) 

In  the  Circuit  Court  of  Cook  County. 
John  Doe,  ) 

Plaintiff,  ) 

) 
vs.  )       ASSUMPSIT. 

) 

Richard  Roe,  ) 

Defendant.  ) 

For  that  whereas,  the  said  plaintiff  heretofore  entered 
into  certain  articles-  of  agreement  in  writing,  made  and 
concluded  on  the  first  day  of  July,  1915,  by  and  between 
said  plaintiff  and  said  defendant,  wherein  and  whereby  the 
said  plaintiff  agreed  with  said  defendant  to  furnish  the  labor 
and  material  for  the  excavation  and  mason  work  of  a  certain 
four-story  apartment  house,  to  be  erected  on  the  corner  of 
Rokeby  Street  and  Sheridan  Avenue,  in  the  city  of  Chicago, 
county  and  state  aforesaid;  and  under  which  said  agreement 
the  said  plaintiff  did  do  the  work  and  labor,  and  did  furnish 
the  material,  according  to  the  terms  of  said  contract  in  all  and 
every  respect  as  therein  provided,  as  by  said  contract  ready 
to  be  produced  in  court  will  more  fully  appear;  and  in  which 
said  contract  it  was  provided  that  all  questions  of  damages, 
allowance  for  extra  work  or  work  left  out,  payments  upon 
said  contract  and  all  questions  as  to  the  true  intent  and  mean- 
ing of  said  contract  shall  be  referred  to  I.  M.  Allen  as  arbi- 
trator, whose  decisions  should  be  final  and  binding,  upon  both 
parties;  yet,  notwithstanding  said  contract,  as  aforesaid,  the 
defendant  acting  under  the  direction,  instruction  and  advice 
of  said  architect,  who  wrongfully,  fraudulently  and  unjustly 
acted  as  the  agent  and  attorney  for  said  defendant,  and 
wholly  failed  to  act  as  an  arbitrator  under  said  contract,  and 
said  defendant  conspiring  with  said  architect  to  defraud  said 
plaintiff  by  deducting  large  sums  of  money  for  delays  alleged 
to  have  been  caused  by  said  plaintiff,  and  upon  other  false  and 
pretended  charges,  deducted  large  sums  of  money  from  the 
amount  due  said  plaintiff,  has  neglected  and  refused,  and  still 

15 


HOW  TO  DO  LAW  OFFICE   STENOGRAPHY 

does  neglect  and  refuse,  to  carry  out  and  fulfill  his  part  of 
said  contract  by  him  to  be  kept  and  performed,  or  any  part 
thereof,  or  to  pay  the  plaintiff  the  sums  of  money  still  due 
him  thereunder,  to  the  great  damage  of  said  plaintiff  in  the 
sum  of  $800;  and  therefore  he  brings  his  suit,  etc. 


Plaintiff's  Attorney, 


COVENANT 

The  action  of  Covenant  may  be  based  upon  a  deed 
under  seal  executed  by  a  person,  or  in  his  behalf;  or 
the  action  may  be  maintained  upon  an  instrument 
which  is  not  in  fact  sealed,  but  which  was  intended 
to  operate  as  a  deed.  At  common  law  it  was  not  nec- 
essary to  the  maintenance  of  the  action  that  there 
should  be  an  actual  seal  to  the  instrument  sued  upon. 

The  following  is  a  form  of  declaration  in  an  action 
of  Covenant  on  a  promissory  note,  as  prevails  in  the 
State  of  Virginia: 

State  of   Virginia,  ) 
County  of  Fairfax,  )    ss' 

In  the  Circuit  Court. 

Oscar  Krauss,  executor  of  the  estate  of  ) 
John  Doe,  deceased,  ) 

Plaintiff,  ) 

) 
vs.  ) 

) 

Richard  Roe,  ) 

Defendant.   ) 

For  this,  to  wit,  that  heretofore,  to  wit,  on  the  3rd  day  of 
March,  1894,  during  the  lifetime  of  said  John  Doe,  at  Fairfax, 
Virginia,  the  said  defendant,  by  his  certain  writing  obligatory, 

16 


HOW  TO  DO  LAW  OFFICE  STENOGRAPHY 

sealed  with  his  seal,  and  now  to  the  court  here  shown,  the 
date  whereof  is  the  day  and  year  aforesaid,  acknowledged 
himself  to  be  held  and  firmly  bound  unto  the  said  John 
Doe  for  value  received,  in  the  sum  of  Six  Thousand  Five 
Hundred  ($6,500)  Dollars,  with  interest  at  Six  (6)  per  cent, 
from  the  3rd  day  of  March,  1894,  until  paid,  to  be  paid  to 
the  said  John  Doe  on  demand,  which  he,  the  said  Richard  Roe, 
covenanted  thereby  to  do. 

And  the  said  plaintiff  in  fact  saith  that  although  the  said 
plaintiff,  executor  as  aforesaid,  since  the  death  of  said  John. 
Doe,  and  the  said  John  Doe,  during  his  lifetime,  have  always, 
from  the  time  of  making  said  writing  obligatory  until  hitherto, 
well  and  truly  performed  and  fulfilled  and  kept  all  things 
therein  contained  on  the  part  of  said  John  Doe  to  be  done  and 
kept  according  to  the  tenor  and  effect,  true  intent  and  meaning 
of  the  said  writing  obligatory,  and  of  which,  the  plaintiff, 
Oscar  Krauss,  executor  as  aforesaid  since  the  death  of  the 
said  John  Doe,  and  the  said  John  Doe  during  his  lifetime 
often,  since  the  making  of  the  said  writing  obligatory,  de- 
manded of  the  said  defendant  the  payment  of  the  aforesaid 
sum  of  money  and  interest  as  aforesaid ;  yet  that  the  said  de- 
fendant since  the  making  of  the  said  writing  obligatory  hath 
not  performed,  fulfilled  and  kept  the  said  covenant  and 
promise  in  the  said  writing  obligatory  contained  on  his  part 
to  be  fulfilled  and  kept  according  to  the  tenor  and  effect,  true 
intent  and  meaning  of  the  said  writing  obligatory,  especially 
in  this,  that  the  said  defendant  hath  not  paid  to  the  plaintiff 
executor  as  aforesaid,  since  the  death  of  the  said  John  Doe, 
nor  to  the  said  John  Doe  during  his  lifetime,  the  said  sum 
of  Six  Thousand  Five  Hundred  ($6,500)  Dollars  and  interest 
at  Six  (6)  per  cent,  thereon  from  the  3rd  day  of  March, 
1894,  as  aforesaid,  nor  any  part  thereof  except  the  sum  of  One 
Thousand  Five  Hundred  ($1,500)  Dollars,  to-wit,  on  the  3rd 
day  of  December,  1894,  said  payment  being  applied  first  on 
account  of  interest  aforesaid,  due  on  the  day  of  the  said  pay- 
ment and  then  on  account  of  the  principal  of  said  sum  of 
money  covenanted  to  be  paid  as  aforesaid;  but  the  same  to 
pay  hath  hitherto  wholly  failed  and  refused,  to  the  plaintiff 
since  the  death  of  said  John  Doe  and  to  the  said  John 
Doe  during  his  lifetime,  and  still  doth  fail  and  refuse  con- 

17 


HOW  TO  DO  LAW  OFFICE  STENOGRAPHY 

trary  to  the  form  and  effect  of  the  said  writing  obligatory  and 
of  the  said  covenant  of  the  said  defendant  so  by  him  made  in 
that  behalf  as  aforesaid. 

By  reason  of  all  which  said  premises,  the  said  plaintiff 
since  the  death  of  said  John  Doe  and  the  said  John  Doe  dur- 
ing his  lifetime  have  not  only  been  deprived  of  said  sum  of 
money,  with  interest  thereon,  as  aforesaid,  and  divers  other 
sums  of  money,  amounting  in  the  whole  to  a  large  sum,  to- 
wit,  the  sum  of  Five  Thousand  ($5,000)  Dollars,  but  have  also 
been  obliged  to  pay  certain  costs,  expenses  and  charges, 
amounting  to  a  large  sum  of  money,  to-wit,  the  sum  of  Eight 
Hundred  ($800.00)  Dollars,  in  and  about  endeavoring  to 
collect  the  said  sum  of  money  and  interest  as  aforesaid. 


DEBT 

Debt  is  an  appropriate  remedy  only  when  the  sum 
to  be  recovered  is  certain,  or  when  it  may  be  ren- 
dered certain  by  computation.  Unliquidated  damages 
cannot  be  made  the  subject  of  an  action  of  debt. 

The  following  is  a  form  of  declaration  where  action 
is  brought  on  an  administrator's  bond: 

State  of  Virginia,       ) 
County  of  Loudoun,  )     SS- 

In  the  Circuit  Court. 

James  Smith,  Anna  Smith  and  Ruth  ) 
Smith,  ) 

Plaintiffs,  ) 

) 
vs.  ) 

) 

Daniel  Smith,  administrator  of  the  estate  ) 
of  John  Smith,  deceased,  Howard  Gait,  ) 
and  Edna  Gait,  his  wife  and  Michael  ) 
Morgan,  ) 

Defendants.   ) 

For  that  whereas,  on,  to-wit,  the  10th  day  of  January,  1910, 

18 


HOW  TO  DO  LAW  OFFICE  STENOGRAPHY 

one  John  Smith  died  intestate  in  the  county  of  Loudoun,  and 
state  of  Virginia,  leaving  a  large  amount  of  personal  estate 
in  said  county.  That  the  said  decedent  left  him  surviving  his 
widow,  Anna  Smith,  and  the  following  children,  and  no  other 
child  or  children  of  any  child,  viz. :  James  Smith,  a  son,  Ruth 
Smith,  a  daughter ;  and  the  defendant  Daniel  Smith,  who  are 
his  only  children  and  heirs  at  law.  That  the  said  defendant, 
Daniel  Smith,  then  was  and  ever  since  has  continued  to  be 
a  resident  of  the  state  of  Virginia.  That  the  said  defendant, 
Daniel  Smith,  on  proceedings  duly  had,  was  by  the  Probate 
Court  of  said  Loudoun  county,  on,  to-wit,  the  5th  day  of 
November,  1910,  duly  appointed  administrator  of  the  estate 
of  John  Smith,  deceased,  and  thereupon  duly  qualified  as 
such  administrator. 

That  the  said  defendant,  Daniel  Smith,  then  and  there  en- 
tered into  bond  with  the  defendants,  Howard  Gait  and  Michael 
Morgan,  as  the  good  and  sufficient  security  required  by  the 
statute  in  that  behalf,  in  double  the  value  of  the  personal 
estate,  to-wit,  Twenty  Thousand  ($20,000)  Dollars,  according 
to  the  statute  in  such  case  made  and  provided,  and  conditioned 
as  the  statute  then  in  force  required  and  as  more  particularly 
hereinafter  set  out. 

That  the  said  bond  was  thereafter  signed  and  sealed  by  the 
said  administrator  and  his  said  securities,  attested  by  the  then 
clerk  of  the  Probate  Court  of  Loudoun  county,  and  filed  in 
his  office  and  which  said  bond  was,  on,  to-wit,  the  8th  day  of 
December,  1910,  duly  approved  by  the  said  Probate  Court  of 
Loudoun  county. 

And  the  defendants  then  and  there,  viz.,  on  the  12th  day  of 
December,  1910,  by  their  writing  obligatory  under  their  re- 
spective hands  and  seals  bearing  date  the  said  12th  day  of  De- 
cember, 1910,  jointly  and  severally  acknowledged  themselves 
to  be  held  and  firmly  bound  unto  the  plaintiffs  in  the  penal 
sum  of  Twenty  Thousand  ($20,000)  Dollars  current  money  of 
the  United  States,  for  the  payment  of  which  well  and  truly 
to  be  made  the  defendants  bound  themselves,  their  heirs, 
executors  and  administrators  jointly  and  severally. 

That  said  writing  obligatory  was  and  is  subject  to  a  certain 
condition  thereunder  written,  to  the  effect  that  if  the  said 
Daniel  Smith,  administrator  of  all  and  singular  the  goods, 
chattels,  rights  and  credits  of  said  John  Smith,  deceased, 

19 


HOW  TO  DO  LAW  OFFICE  STENOGRAPHY 

should  make,  or  cause  to  be  made,  a  true  and  perfect  inventory 
of  all  and  singular  the  goods,  chattels,  rights  and  credits  of 
said  deceased,  which  should  come  to  the  hands,  possession  or 
control  or  knowledge  of  him,  the  said  Daniel  Smith,  as  ad- 
ministrator, or  to  the  hands  of  any  person  or  persons  for 
him ;  and  the  same  so  made  should  exhibit,  or  cause  to  be  ex- 
hibited, in  the  Probate  Court  of  Loudoun  county,  according 
to  law ;  and  such  goods,  chattels,  rights  and  credits  should 
well  and  truly  administer,  according  to  law  and  all  the  rest 
of  the  said  goods,  chattels,  rights  and  credits,  which  should 
be  found  remaining  upon  the  account  of  the  administrator,  the 
same  being  at  first  examined  and  allowed  by  the  court,  should 
deliver  and  pay  unto  such  person  or  persons  respectively  as 
might  legally  be  entitled  thereto ;  and  should  further  make  a 
just  and  true  account  of  all  his  acts  and  doings  therein,  when 
thereunto  required  by  the  said  court ;  and  if  it  should  appear 
that  any  last  will  and  testament  was  made  by  the  said  de- 
ceased, and  the  same  should  be  approved  in  court  and  letters 
testamentary  or  of  administration  obtained  thereon,  the  said 
Daniel  Smith,  on  being  required  thereto,  should  render  and 
deliver  up  the  letters  of  administration  granted  aforesaid, 
and  should  in  general  do  and  perform  all  other  acts  which 
might  at  any  time  be  required  of  him  by  law;  that  then  the 
said  obligation  was  to  be  void ;  otherwise  to  remain  in  full 
force  and  effect  and  virtue,  as  by  the  said  writing  obligatory 
and  the  said  condition  thereof,  remaining  upon  the  files  of 
said  court,  will  more  fully  appear. 

That  thereupon  the  said  Daniel  Smith  then  and  there  took 
upon  himself  the  administration  of  said  estate  and  from  thence 
hitherto  has  been  and  still  is  such  administrator. 

But  the  plaintiffs  aver  that  the  said  defendant,  Daniel 
Smith,  has  not  faithfully  performed  the  acts  required  of  him, 
or  his  duties  as  such  administrator,  according  to  the  terms  of 
the  said  conditions  of  the  said  writing  obligatory,  but  has 
wholly  failed  and  refused  so  to  do,  to  the  injury  of  said 
Anna  Smith,  James  Smith,  and  Ruth  Smith. 

And  plaintiffs  allege  as  a  breach  of  the  said  condition  of  the 
said  writing  obligatory,  that  heretofore,  to-wit,  on  the  said 
12th  day  of  December,  1910,  there  came  to  the  hands  of  said 
Daniel  Smith,  as  such  administrator,  a  large  sum  of  money,  to- 
wit,  the  sum  of  Three  Thousand  ($3,000)  Dollars,  which  it 

20 


HOW  TO  DO  LAW  OFFICE  STENOGRAPHY 

became  and  was  the  duty  of  said  defendant,  Daniel  Smith,  as 
such  administrator,  to  hold  and  keep  and  well  and  truly  ad- 
minister according  to  law  and  deliver  and  pay  unto  such 
persons  respectively  as  might  be  legally  entitled  thereto;  but 
the  plaintiffs  allege  that  the  defendant,  Daniel  Smith,  adminis- 
trator, wholly  unmindful  of  his  duty  as  aforesaid,  wholly 
failed  so  to  do,  but  delivered  and  paid  the  whole  of  said  fund 
to  persons  not  legally  entitled  thereto,  to-wit,  to  the  defendant, 
Howard  Gait,  without  any  order  of  the  court  therefor. 

Plaintiffs  allege  that  afterwards,  on,  to-wit,  the  15th  day 
of  February,  1911,  the  said  defendant,  Daniel  Smith,  as  such 
administrator,  filed  in  the  Probate  Court  of  Loudoun  county 
his  certain  report  and  account  in  and  by  which  the  said  ad- 
ministrator showed  to  the  Probate  Court  of  said  Loudoun 
county  that  he  had  loaned  of  the  funds  in  his  hands  as  such 
administrator,  the  sum  of  Three  Thousand  ($3,000)  Dollars 
to  the  said  Howard  Gait  and  Edna  Gait,  his  wife,  which  said 
sum  has  been  lost,  by  reason  of  the  fact  that  the  said  Howard 
Gait  and  Edna  Gait  have  become  insolvent  and  the  securities 
given  to  secure  the  same  have  become  valueless. 

That  thereupon  the  said  Probate  Court  of  said  Loudoun 
county  entered  an  order,  disapproving  said  report  and  ac- 
count and  disallowing  the  said  claim  of  said  administrator 
for  credit  in  his  said  account  for  the  amount  of  his  said  loan, 
and  directing  the  said  administrator  to  make  and  present  to 
the  court  a  new  report  and  account,  from  which  said  claimed 
credit  be  omitted. 

That  afterwards,  to-wit,  the  24th  day  of  April,  1911,  the 
said  defendant,  Daniel  Smith,  as  such  administrator,  under 
the  direction  of  the  said  Probate  Court  of  Loudoun  county, 
made  and  filed  in  the  office  of  the  clerk  of  said  Probate  Court 
and  presented  to  said  Probate  Court,  a  new  account  and  re- 
port, in  and  by  which  it  appeared  that  there  was  in  the 
hands  of  such  administrator,  of  the  assets  of  said  estate,  cer- 
tain sums  due  from  such  administrator  to  the  various  persons 
for  whose  use  this  suit  was  brought  as  aforesaid;  that  is  to 
say,  there  was  due  Anna  Smith,  widow  of  said  decedent,  as 
her  distributive  share  of  the  assets  of  said  estate,  after  charg- 
ing her  and  allowing  the  administrator  credit  for  all  sums 
paid  to  her  or  for  her  use  by  said  administrator,  the  sum  of 
Eight  Thousand  Five  Hundred  ($8,500)  Dollars  as  the  un- 

21 


HOW  TO  DO  LAW  OFFICE  STENOGRAPHY 

paid  balance  of  her  distributive  share  of  the  estate  of  said 
decedent;  that  there  was  due  to  Kuth  Smith,  after  giving  to 
said  administrator  credit  for,  and  charging  her  with  all  sums 
paid  to  her  or  for  her  account  by  said  administrator,  the  sum 
of  Three  Thousand  Five  Hundred  ($3,500)  Dollars  as  the 
unpaid  balance  of  her  distributive  share  in  the  estate  of  said 
decedent ;  that  there  was  due  to  James  Smith,  after  giving  to 
said  administrator  credit  for,  and  after  charging  him  with  all 
sums  paid  to  him  or  for  his  account  by  said  administrator,  the 
sum  of  One  Thousand  Nine  Hundred  ($1,900)  Dollars  as  the 
unpaid  balance  of  his  distributive  share  in  the  estate  of  said 
decedent. 

That  there  was  also  due  and  unpaid  to  Thomas  Grant,  the 
attorney  of  the  said  estate,  Seven  Hundred  and  Fifty 
($750.00)  Dollars,  and  unpaid  court  costs  amounting  to  the 
sum  of  Eighty-Six  ($86.00)  Dollars. 

That  thereafter,  to-wit,  on  the  2nd  day  of  June,  1911,  upon 
proceedings  duly  had,  in  the  said  Probate  Court  of  Loudoun 
county,  before  the  judge  thereof,  it  was  by  the  said  court 
finally  adjudged  that  the  aforesaid  amounts  respectively  were 
held  by  the  said  defendant,  Daniel  Smith,  as  such  adminis- 
trator for  the  use  of  the  parties  aforesaid ;  and  it  was  by  the 
consideration  and  judgment  of  said  court  ordered  and  de- 
creed that  such  administrator  do  pay  within  five  days  from 
the  making  of  said  order  to  the  parties  severally  entitled  to 
the  said  sums  of  money ;  that  is  to  say,  that  he  should  pay  the 
said  costs  and  attorneys'  fees: 

That  he  should  pay  to  Anna  Smith,  $8,500.00. 

That  he  should  pay  to  Ruth  Smith,  $3,500.00. 

That  he  should  pay  to  James  Smith,  $1,900.00. 

The  plaintiffs  allege  that  although  more  than  five  days  have 
elapsed  since  the  making  of  said  order,  and  although  after 
the  expiration  of  said  period  of  five  days  each  of  the  persons 
for  whose  use  this  suit  is  brought  demanded  of  the  said  Daniel 
Smith  that  he  pay  to  them  the  amounts  due  to  them  respec- 
tively, as  per  the  terms  of  said  last  named  order  and  decree 
of  said  Probate  Court  of  Loudoun  county;  yet  the  said  de- 
fendant, Daniel  Smith,  administrator,  as  aforesaid,  has  wholly 
failed  and  refused,  and  still  does  refuse  to  pay  to  the  persons 
so  entitled  as  aforesaid,  the  whole  or  any  part  so  found  due 
as  aforesaid. 

22 


HOW  TO  DO  LAW  OFFICE   STENOGRAPHY 

And  the  plaintiffs  assign  as  a  further  breach  of  the  condi- 
tion of  said  writing  obligatory,  that,  on,  to-wit,  the  2nd  day 
of  June,  1911,  there  was  in.  the  hands  of  the  said  adminis- 
trator, after  the  payment  of  all  debts,  expenses  of  administra- 
tion and  all  other  lawful  charges  against  the  said  estate  of 
John  Smith,  deceased,  the  following  named  sums  in  the  hands 
of  such  administrator,  as  their  respective  distributive  shares 
of  the  estate  of  said  decedent  in  his  hands;  that  is  to  say, 
that  there  was  in  his  hands  as  such  administrator  the  sum  of 
Eight  Thousand  Five  Hundred  ($8,500)  Dollars  as  the  un- 
paid balance  of  the  distributive  share  of  said  Anna  Smith, 
widow  of  said  decedent,  also  the  sum  of  Three  Thousand  Five 
Hundred  ($3,500)  Dollars,  as  the  unpaid  balance  of  the  dis- 
tributive share  of  Ruth  Smith,  daughter  of  said  decedent, 
also  the  sum  of  One  Thousand  Nine  Hundred  ($1,900)  Dollars, 
as  the  unpaid  balance  of  the  distributive  share  of  James 
Smith,  son  of  said  decedent. 

That  in  addition  to  said  sums  so  as  aforesaid  held  by  him 
for  the  said  distributees  as  aforesaid,  the  sum  of  Seven  Hun- 
dred and  Fifty  ($750.00)  Dollars,  the  unpaid  attorney's  fees 
of  Thomas  Grant,  the  attorney  of  said  estate,  in  the  manage- 
ment of  said  estate,  and  the  sum  of  Eighty-Six  ($86.00) 
Dollars,  unpaid  costs  of  administration. 

That  thereupon,  on,  to-wit,  the  24th  day  of  April,  1911,  the 
said  defendant,  Daniel  Smith,  as  such  administrator,  filed  in 
the  Probate  Court  of  Loudoun  county  his  final  account  and 
report  showing  the  facts. 

That  thereupon,  by  the  consideration  and  judgment  of  the 
said  Probate  Court  of  Loudoun  county,  it  was  by  said  court 
ordered,  adjudged  and  decreed  that  the  final  account  and  re- 
port of  said  administrator  be  approved,  and  that  the  said 
administrator  pay  said  unpaid  costs  of  Eighty-Six  ($86.00) 
Dollars,  and  the  said  attorney's  fees  of  Seven  Hundred  and 
Fifty  ($750.00)  Dollars,  and  to  Anna  Smith  the  sum  of 
Eight  Thousand  Five  Hundred  ($8,500)  Dollars,  and  to  Ruth 
Smith  the  sum  of  Three  Thousand  Five  Hundred  ($3,500) 
dollars,  and  to  James  Smith  the  sum  of  One  Thousand  Nine 
Hundred  ($1,900)  Dollars. 

But  the  said  Daniel  Smith,  administrator  as  aforesaid, 
wholly  unmindful  of  his  duty  in  the  premises,  has  not  paid 
the  said  sums  of  money  or  any  part  thereof,  but  has  wasted 

23 


the  said  moneys  and  effects,  and  wholly  fails  and  refuses  to 
pay  any  part  thereof  to  the  parties  so  as  aforesaid  entitled 
thereto.  By  means  of  which  premises,  an  action  has  accrued 
to  the  plaintiffs  for  the  use  aforesaid,  in  the  sums  above  set 
forth. 

Yet,  the  defendants,  though  requested  thereto,  have  not  paid 
to  the  plaintiff,  or  to  any  of  the  persons  for  whose  use  this 
suit  is  brought,  the  said  sum  of  money  or  any  part  thereof, 
but  refuse  so  to  do,  to  the  damage  of  the  plaintiffs  for  the  use 
aforesaid,  in  the  sums  above  set  forth. 

And  therefore  for  the  use  aforesaid  this  suit  is  brought. 


Plaintiffs'  Attorney. 

DETINUE 

The  action  of  detinue  is  maintainable  for  the  wrong- 
ful detainer  of  specific  goods  or  chattels  against  a 
person  who  has  the  actual  possession  of  the  property 
and  who  acquired  it  by  lawful  means,  as  by  bailment, 
delivery  or  finding.  The  gist  of  the  action  is  the 
wrongful  detainer.  The  following  is  a  form  of  dec- 
laration in  Detinue,  as  would  be  used  in  the  State 
of  Virginia: 

State  of  Virginia,       ) 
County  of  Loudoun,  )     ss' 

In  the  Circuit  Court. 

Smith  Cash  Kegister  Company,  a  cor-  ) 
poration,  ) 

Plaintiff,  ) 
) 

vs.  ) 

) 

Patten  Manufacturing  Company,  a  cor-  ) 
poration,  A.  C.  True,  and  John  B.  Mar-  ) 
shall,  ) 

Defendants.   ) 

The  Smith  Cash  Register  Company,  a  corporation,  plain- 

24 


HOW  TO  DO  LAW  OFFICE  STENOGRAPHY 

tiff,  complains  of  the  Patten  Manufacturing  Company,  a  cor- 
poration, A.  C.  True  and  John  R.  Marshall,  trustees  of  the 
Patten  Manufacturing  Company,  a  corporation  duly  organ- 
ized and  existing  under  and  by  virtue  of  the  laws  of  the 
state  of  Virginia,  defendants,  who  have  been  summoned  to 
answer  a  plea  that  they  render  to  the  plaintiff  two  (2)  certain 
cash  registers,  numbers  11345  and  11346,  the  property  of  it 
the  said  plaintiff  of  great  value,  to-wit,  of  the  value  of  Eight 
Hundred  ($800.00)  Dollars,  which  from  the  said  plaintiff, 
the  said  defendants  unjustly  detain.  And  thereupon  the 
said  plaintiff  saith  that  heretofore,  to-wit,  on  the  26th  day 
of  August,  1915,  at  the  city  aforesaid,  it,  the  said  plaintiff, 
delivered  to  the  defendants  the  said  cash  registers  numbers 
11345  and  11346,  the  property  of  the  said  plaintiff  of  great 
value,  to-wit,  of  the  value  of  Eight  Hundred  ($800.00)  Dol- 
lars, to  be  re-delivered  to  the  said  plaintiff  by  the  said  de- 
fendants when  they  the  said  defendants  should  be  thereunto 
afterwards  requested.  Nevertheless,  the  said  defendants  al- 
though they  were  afterwards,  to-wit,  on  the  5th  day  of  June, 
3916,  in  the  city  aforesaid  requested  by  the  said  plaintiff  so 
to  do,  hath  not  as  yet  delivered  the  said  cash  registers  num- 
bers 11345  and  11346  to  the  said  plaintiff,  but  hath  hitherto 
wholly  neglected  and  refused,  and  still  doth  neglect  and  re- 
fuse so  to  do,  and  still  unjustly  detain  the  same  from  the 
said  plaintiff,  viz.,  at  the  city  aforesaid,  to  the  damage  of  the 
said  plaintiff  of  Eight  Hundred  ($800.00)  Dollars.  And 
therefore  it  brings  its  suit. 


Plaintiff's  Attorney. 

CASE 

Case,  and  not  trespass,  is  maintainable  for  an  in- 
jury produced  by  a  cause  that  is  known  to  the  wrong- 
doer to  be  of  a  dangerous  character. 

An  action  for  Libel  is  an  action  in  Trespass  on  the 
Case  and  is  maintainable  for  a  wrongful  and  malicious 
publication  of  words  which  tend  to  bring  a  party 
into  public  hatred,  contempt,  or  ridicule. 

25 


HOW  TO  DO  LAW  OFFICE  STENOGRAPHY 

The  following  is  a  form  of  declaration  in  an  action 
for  Libel: 

State  of  Illinois,  ) 
County  of  Cook,  ) 

In  the  Circuit  Court  of  Cook  County. 

John  Doe,  ) 

Plaintiff,  ) 

) 
vs.  ) 

) 

The  Chicago  Times,  a  corporation,  ) 

Defendant.   ) 

For  that  whereas,  before  and  at  the  time  of  the  committing 
by  the  defendant  of  the  several  grievances  hereinafter  men- 
tioned, said  plaintiff  was  a  person  of  good  name,  credit  and 
reputation  in  the  county  of  Cook,  and  state  of  Illinois,  and 
before  and  at  the  time  of  the  committing  by  the  defendant  of 
the  several  grievances  hereinafter  mentioned,  carried  on,  and 
still  does  carry  on,  the  trade  and  business  of  a  dry  goods  mer- 
chant in  the  city  of  Chicago,  in  said  county  of  Cook,  and  was 
deservedly  held  in  esteem  by  his  neighbors  and  those  with  whom 
he  had  dealings  in  his  trade  and  business  as  such  dry  goods 
merchant,  whereby  he  acquired  great  gains  in  his  trade  and 
business ;  and  whereas,  before  and  at  the  time  of  the  commit- 
ting by  the  defendant  of  the  several  grievances  hereinafter 
mentioned,  the  plaintiff  was  held  in  high  esteem  by  his  neigh- 
bors and  acquaintances,  as  a  patriotic,  law-abiding  and  law- 
respecting  citizen  of  said  county,  and  as  to  his  political  views, 
tenets  and  opinions  he  was,  and  for  a  long  time  prior  thereto 
had  been,  a  member  and  adherent  of  the  democratic  party, 
and  had  obtained  and  received  the  nomination  as  a  candidate 
for  the  office  of  treasurer  of  said  Cook  county  by  the  regular 
and  general  nominating  convention  of  said  democratic  party 
of  the  said  county  of  Cook,  held  in  Chicago,  in  said  Cook 
county,  on  the  15th  day  of  June,  1914,  and  thereby  became 
and  was  a  candidate  for  said  office  of  treasurer  on  the  regular 
ticket  of  said  democratic  party  at  the  general  election  held  in 
said  county  on  the  5th  day  of  November,  1914. 

26 


HOW  TO  DO  LAW  OFFICE  STENOGRAPHY 

And  the  said  plaintiff,  for  a  further  statement  of  extrinsic 
facts  bearing  upon  the  grievances  hereinafter  mentioned  and 
complained  of,  further  avers  that  on  and  prior  to  the  4th  day 
of  May,  1886,  there  was  in  said  county  of  Cook,  and  elsewhere 
throughout  the  United  States,  and  ever  since  that  time  has 
been  and  still  is,  a  large  number,  class,  sect  or  party  of  per- 
sons commonly  called,  known  and  designated  as  ' '  anarchists ' ' ; 
that  on  said  4th  day  of  May,  1886,  a  great  riot  occurred  in 
the  city  of  Chicago,  in  said  county  of  Cook,  now  commonly 
known  as  the  "Haymarket  Riot,"  in  which  riot  one  Matthias 
J.  Began,  a  policeman  of  said  city  of  Chicago,  was,  as  was 
then  and  ever  since  that  time  has  been  and  still  is  commonly 
understood  and  believed,  killed  by  a  dynamite  bomb  thrown 
by  some  person  into  the  midst  of  a  company  of  policemen  of 
the  said  city  of  Chicago,  then  and  there  being  the  explosion 
of  said  bomb ;  that  it  was  then  and  ever  since  that  time,  has 
been  and  still  is,  commonly  believed  in  said  city  of  Chicago, 
and  in  said  county  of  Cook,  and  elsewhere,  that  said  riot  and 
murder  were  immediately  and  remotely  instigated,  caused  and 
brought  about  by  said  class  and  party  of  persons  then  and 
ever  since  then  and  now  generally  known  and  designated  in 
said  city  and  county  as  "anarchists,"  and  by  certain  leaders 
and  prominent  and  representative  men  in  said  class  or  party 
of  persons  called  ' '  anarchists, ' '  as  aforesaid ;  and  it  was  then, 
and  ever  since  that  time  has  been  and  is  now,  commonly 
understood  and  believed  in  the  city  and  county  aforesaid,  that 
said  riot  and  murder  were  the  natural  result  of  the  doctrines 
and  teachings  of  said  class,  party  or  sect  called  "anarchists," 
as  aforesaid,  and  that  the  doctrines,  opinions,  beliefs,  teachings, 
and  tenets  of  said  class,  party  or  sect  called  anarchists,  as 
aforesaid,  and  of  the  persons  composing  said  class,  party  or 
sect,  is,  that  the  law  and  order  of  society  then,  and  ever  since 
then  and  now,  existing,  should  be  overthrown  by  revolution 
and  force. 

And  the  plaintiff  further  avers  that  after  said  riot  and  mur- 
der eight  of  the  prominent  leaders  of  said  class,  party  or  sect 
called  anarchists,  to  wit,  August  Spies,  Michael  Schwab, 
Samuel  Fielden,  Albert  R.  Parsons,  Adolf  Fischer,  George 
Engel,  Louis  Lingg  and  Oscar  ~W.  Neebe,  were  indicted  by 
the  grand  jury  of  said  Cook  county  for  murder,  to-wit,  the 
murder  aforesaid,  and  thereupon  such  proceedings  were  after- 

27 


HOW  TO  DO  LAW  OFFICE  STENOGRAPHY 

wards  had  in  the  Criminal  Court  of  said  county  that  all  of 
said  persons  above  named  were  adjudged  guilty  of  murder, 
and  in  pursuance  of  the  judgment  of  said  Criminal  Court 
the  said  August  Spies,  Michael  Schwab,  Samuel  Fielden,  Al- 
bert R.  Parsons,  Adolf  Fischer,  George  Engel  and  Louis 
Lingg  were  given  the  death  penalty,  and  in  pursuance  of  said 
judgment  the  said  Oscar  W.  Neebe  was  committed  to  the  peni- 
tentiary of  the  state  of  Illinois. 

And  the  plaintiff  further  avers  that  said  riot  has  been,  ever 
since  its  occurrence,  commonly  known  in  said  city  and  county 
as  the  riot  of  the  anarchists;  and  that  said  trial  of  said 
eight  persons  was  at  the  time  thereof,  and  ever  since  that  time 
has  been  and  still  is,  commonly  known  in  said  city  and  county 
as  the  trial  of  the  anarchists ;  and  the  hanging  of  said  persons 
above  named  was  then,  and  ever  since  that  time  has  been  and 
now  is,  in  like  manner  commonly  known  and  spoken  of  as  the 
hanging  of  the  anarchists. 

And  the  plaintiff  further  avers,  that  the  name,  term  and 
designation  of  "anarchists"  ever  since  said  riot,  trial  and 
hanging,  has  been  and  still  is  commonly  understood  and  re- 
garded in  said  city  and  county,  and  elsewhere,  as  descriptive 
of  one  who  holds  and  entertains  opinions  and  doctrines  op- 
posed to  the  maintenance  of  law  and  order  and  subversive  of 
government,  and  similar  in  that  regard  to  the  opinions  and 
doctrines  entertained  and  acted  upon,  as  aforesaid. 

And  the  plaintiff  further  avers,  that  ever  since  said  riot, 
trial  and  hanging,  the  name  and  designation  of  "anarchist" 
applied  to  any  person,  has  tended,  and  still  tends,  to  expose 
such  person  to  public  hatred,  contempt  and  financial  injury ; 
yet  the  defendant,  well  knowing  the  premises,  but  contriving 
and  wrongfully  and  maliciously  intending  to  injure  and  de- 
stroy the  good  name  and  reputation  of  the  plaintiff  as  a  law- 
abiding  and  order-loving  citizen  of  the  community  in  which  he 
lives,  to-wit,  in  the  city  and  county  aforesaid,  and  to  injure  him 
in  his  said  business,  and  to  bring  him  into  public  hatred,  con- 
tempt, ridicule  and  financial  injury,  on  the  day  of  August  26, 
1914,  in  the  county  aforesaid,  wickedly  and  maliciously  did 
compose  and  publish,  and  did  cause  to  be  composed  and  pub- 
lished, of  and  concerning  the  plaintiff,  and  of  and  concerning 
the  plaintiff  as  a  candidate  for  said  office  of  treasurer,  in  a 
certain  newspaper  called  "The  Chicago  Times,"  whereof  the 

28 


HOW  TO  DO  LAW  OFFICE  STENOGRAPHY 

said  defendant  was  then  and  there  the  proprietor,  a  certain 
false,  scandalous,  malicious  and  defamatory  libel,  containing, 
among  other  things  the  false,  scandalous,  malicious,  defama- 
tory and  libelous  matter  following,  of  and  concerning  the 
plaintiff,  that  is  to  say:  "He  (meaning  the  plaintiff)  is  an 
anarchist,  hot-headed  and  fiery.  It  was  said  yesterday 
that  a  committee  of  seven  had  gone  to  see  him  (meaning  the 
plaintiff),  and  was  received  by  him  (meaning  the  plaintiff), 
in  a  room  with  pictures  of  August  Spies  and  Michael  Schwab, 
and  the  other  anarchists  (meaning  the  other  anarchists  above 
mentioned).  This  did  not  satisfy  the  committee  and  they 
were  imprudent  enough  to  complain  about  him"  (meaning 
the  plaintiff),  meaning  and  intending  thereby  to  charge  the 
plaintiff  with  being  a  member  of  said  class,  party  or  sect  of 
persons  called  ' '  anarchists, ' '  and  that  the  plaintiff  entertained 
and  held  to  the  aforesaid  doctrines,  views  and  tenets,  of  said 
class,  party  or  sect  of  persons  called  anarchists,  and  that  the 
plaintiff  held  to  the  teachings  of  said  executed  anarchists  with 
regard  to  law  and  government,  and  that  the  plaintiff  was  in 
accord  with  the  doctrines  and  cherished  the  memory  of 'said 
executed  revolutionists  and  murderers,  and  that  said  plaintiff 
was  a  person  who  entertained  opinions  and  doctrines  opposed 
to  the  maintenance  of  law  and  order  and  subversive  of  gov- 
ernment, and  in  favor  of  the  overthrow  of  society  as  then 
existing,  by  revolution  and  force. 

2.  And  also  for  that  whereas,  afterwards,  to-wit,  on  the 
30th  day  of  August,  1914,  in  the  county  aforesaid,  the  said 
defendant,  well  knowing  the  premises  aforesaid,  and  further 
contriving  and  wrongfully  and  maliciously  intending  to  in- 
jure and  destroy  the  good  name  and  reputation  of  the  plaintiff 
as  a  law-abiding  citizen  in  the  community  in  which  he  resided, 
to-wit,  in  the  city  of  Chicago,  and  county  of  Cook  aforesaid, 
did  compose  and  publish,  and  did  cause  to  be  composed  and 
published,  of  and  concerning  the  plaintiff,  and  of  and  concern- 
ing the  result  of  said  election,  and  of  and  concerning  the 
plaintiff  as  candidate  at  said  election,  in  said  newspaper  called 
"The  Chicago  Times,"  whereof  the  said  defendant  was  there 
and  then  the  proprietor,  a  certain  other  false,  scandalous, 
malicious  and  defamatory  libel,  containing,  among  other 
things  the  false,  scandalous,  malicious,  defamatory  and  libel- 
ous matter  following,  of  and  concerning  the  plaintiff,  as  afore- 

29 


HOW  TO  DO  LAW  OFFICE  STENOGRAPHY 

said,  that  is  to  say:  But  he  (meaning  the  plaintiff),  was 
voted  against  because  he  is  an  anarchist.  This  is  disclosed  by 
the  returns  from  the  first,  sixth,  tenth,  twelfth,  twenty-first 
and  thirty-first  wards.  Here  are  seven  democratic  wards. 
Their  vote  indicates  somewhat  the  temper  of  the  party 
(meaning  the  democratic  party)  towards  him  (meaning  the 
plaintiff).  These  figures  show  that  his  opponent  ran  nearly 
ten  thousand  votes  ahead  of  him  (meaning  the  plaintiff),  in 
these  wards."  Meaning  and  intending  to  charge  that  said 
plaintiff  was  then,  to-wit,  at  the  time  of  and  before  said  elec- 
tion, a  member  and  adherent  of  said  party,  sect  or  class  of 
persons  then  commonly  known  and  designated  as  "anarchists," 
as  aforesaid,  and  that  he,  the  said  plaintiff,  was  defeated  at 
said  election,  and  ran  behind  the  other  candidates  on  said 
ticket  at  said  election,  because  he,  the  said  plaintiff,  was  an 
anarchist;  and  meaning  and  intending  to  charge  that  the 
plaintiff  was  a  person  who  entertained  opinions  and  doctrines 
opposed  to  the  maintenance  of  law  and  order  and  subversive 
of  government,  and  in  favor  of  the  overthrow  of  society  as 
then  existing,  by  revolution  and  force. 

By  means  of  the  committing  of  said  several  grievances  by 
the  defendant,  the  plaintiff  has  been  and  is  greatly  injured 
in  his  good  name,  credit  and  reputation,  and  has  been  brought 
into  public  scandal  and  disgrace;  and  also  by  means  of  the 
premises  the  plaintiff  has  been  and  is  otherwise  injured,  to 
the  damage  of  the  plaintiff  of  Fifty  Thousand  ($50,000)  Dol- 
lars, and  therefore  he  brings  suit,  etc. 


Plaintiff's  Attorney. 

CERTIORARI 

CERTIORAEI  is  a  common  law  or  statutory  remedy  to 
review  proceedings  of  inferior  courts  which  are  not 
reviewable  on  appeal,  error,  or  other  modes  of  re- 
view. A  writ  of  certiorari  is  of  common  law  origin 
and  is  in  force  in  Illinois  as  part  of  its  adopted  law. 
At  common  law  it  is  maintainable  only  when  the  in- 
ferior court  or  jurisdiction  has  exceeded  its  power 

30 


HOW  TO  DO  LAW  OFFICE   STENOGRAPHY 

or  has  proceeded  illegally,   and  no   appeal  is  given 
or  writ  of  error  will  lie. 

The  following  is  a  form  for  the  state  of  Illinois  of 
a  writ  of  certiorari: 

State  of  Illinois. 

In  the  Supreme  Court. 
Mary  Jenkins,  ) 

Petitioner,   ) 

) 

vs.  ) 

) 

Thomas  Sauiiders,  ) 

Respondent.   ) 

To  the  honorable,  the  judges  of  the  Supreme  Court  of  the 
state  of  Illinois: 

Now  comes  Mary  Jenkins,  petitioner,  in  the  above  entitled 
cause,  by  James  Gregory,  her  attorney,  and  represents  unto  the 
court  that  upon  hearings  of  a  cause  in  the  Circuit  Court  of 
Cook  County,  Illinois,  at  the  October  term,  1914,  of  said  court, 
wherein  this  petitioner  was  the  petitioner  and  Thomas  Saun- 
ders  was  respondent,  a  judgment  and  order  was  entered  in 
favor  of  this  petitioner  removing  said  Thomas  Saunders  as 
administrator  of  the  estate  of  "William  Jenkins,  deceased,  and 
directing  that  the  property  be  turned  over  to  your  petitioner. 

Your  petitioner  further  represents  that  said  Thomas  Saun- 
ders prayed  for  and  perfected  an  appeal  from  said  order  and 
judgment  of  the  Circuit  Court  to  the  Appellate  Court  for 
the  first  district  of  the  state  of  Illinois,  and  said  appeal  was 
submitted  to  said  court  at  the  May  term,  1915,  of  said  court. 
That  afterwards,  at  the  July  term,  1915,  of  said  Appellate 
Court,  to-wit,  on  the  14th  day  of  July,  1915,  the  said  Appellate 
Court  filed  an  opinion  and  rendered  a  judgment  in  said  cause 
reversing  the  judgment  and  order  of  the  Circuit  Court. 

Your  petitioner  therefore  presents  her  petition  that  a  writ 
of  certiorari  be  granted  to  the  Appellate  Court  of  the  first 
district  of  the  state  of  Illinois  in  said  cause  directing  that 
said  Appellate  Court  shall  certify  to  the  Supreme  Court  said 
cause  for  review  and  determination. 

31 


HOW  TO  DO  LAW  OFFICE  STENOGRAPHY 

And  for  reasons  therefor  your  petitioner  would  represent 
that  said  cause  involves  a  question  of  such  importance  in  rela- 
tion to  the  administration  of  estates  and  the  power  and  author- 
ity of  the  public  administrator  to  act  arid  the  rights  and 
powers  of  the  heirs  of  a  decedent  who  reside  within  the  state, 
where  there  are  no  creditors,  to  adjust  among  themselves 
without  the  expenses  attending  an  administration  the  rights 
of  the  several  heirs  in  and  to  the  property  of  the  deceased, 
that  in  the  decision  of  said  cause  it  is  necessary  to  place  a 
construction  upon  sections  eighteen  and  forty-six  of  the  Ad- 
ministration act  of  the  state  of  Illinois ;  and  as  said  two  sec- 
tions had  not  been  construed  by  the  Supreme  Court  as  relating 
to  each  other  a  writ  of  certiorari  should  be  granted  in  this 
cause  and  the  same  certified  to  the  Supreme  Court  that  said 
court  may  make  such  construction. 

Your  petitioner  therefore  prays  that  pursuant  to  the  second 
paragraph  of  section  121  of  "An  Act  in  relation  to  practise 
and  procedure  in  courts  of  record,"  as  amended  by  an  act 
approved  June  4,  1909,  in  force  July  1,  1909,  a  writ  of  cer- 
tiorari may  be  granted  in  this  cause. 

Respectfully  submitted, 


Attorney  for  Petitioner. 


EJECTMENT 

Ejectment  is  a  form  of  action  which  lies  to  regain 
the  possession  of  real  property,  with  damages  for  the 
unlawful  detention  thereof.  By  this  form  of  action 
possessory  titles  to  corporeal  hereditaments  may  be 
tried  and  possession  obtained.  Corporeal  heredita- 
ments are  substantially  permanent  objects  which  may 
be  inherited.  The  term  "land"  will  include  all  such. 

On  the  next  following  page  is  given  a  form  of 
declaration  in  ejectment  which  would  be  used  in  the 
District  of  Columbia: 

32 


HOW  TO  DO  LAW  OFFICE   STENOGRAPHY 

In  the  Supreme  Court  of  the  District  of  Columbia. 

John  Doe,  ) 

Plaintiff,  ) 

) 

vs.  ) 

) 

Richard  Roe,  ) 

Defendant.  ) 

The  plaintiff,  John  Doe,  sues  the  defendant,  Richard  Roe, 
to  recover  possession  of  the  piece  and  parcel  of  land  in  the  city 
of  Washington,  District  of  Columbia,  described  as  follows, 
to-wit:  Part  of  Original  Lot  One  (1),  in  Square  numbered 
Four  Hundred  and  Eighty-seven  (487),  contained  within  the 
following  metes  and  bounds : 

Beginning  on  Fifth  Street  forty-six  (46)  feet  north  from 
the  southeast  corner  of  said  Square,  and  running  thence  north 
twenty-nine  (29)  feet  to  the  northeast  corner  of  said  Lot  One 
(1)  ;  thence  west  sixty-two  (62)  feet  three  (3)  inches;  thence 
south  twenty-nine  (29)  feet,  and  thence  east  sixty-two  (62) 
feet,  three  (3)  inches  to  the  place  of  beginning,  together  with 
the  improvements,  rights,  privileges,  and  appurtenances  to 
the  same  belonging,  in  which  said  described  premises  the 
plaintiff  claims  the  fee  simple  title,  and  of  which  he  was  law- 
fully possessed,  to-wit,  on  the  first  day  of  November,  1916, 
when  the  defendant  entered  upon  the  same  and  unlawfully 
ejected  the  plaintiff  therefrom. 

And  the  plaintiff  claims  the  possession  of  said  piece  or 
parcel  of  ground,  with  the  improvements  thereon  and  the  ap- 
purtenances thereof,  and  the  costs  of  this  suit. 

And  the  plaintiff  further  sues  the  defendant  for  money 
payable  by  the  defendant  to  the  plaintiff  for  that  the  de- 
fendant having  as  aforesaid  ejected  the  plaintiff  from  the 
aforesaid  premises,  has,  from  the  day  and  date  aforesaid  taken 
and  received  and  still  continues  to  take  and  receive,  the  rents, 
issues,  and  profits  thereof,  and  to  use,  occupy,  and  enjoy  the 
said  premises,  to  the  damage  of  the  plaintiff,  John  Doe,  in  the 
sum  of  four  hundred  dollars,  which  amount  the  plaintiff 
claims  besides  costs  of  this  suit. 

33 


HOW  TO  DO  LAW  OFFICE  STENOGRAPHY 

GAENISHMENT 

The  proceeding  of  garnishment  is  purely  statutory 
and  is  a  proceeding  at  law.  It  is  a  process  of  attach- 
ing money  or  goods  due  a  defendant  in  the  hands  of 
a  third  party.  The  person  in  whose  hands  such 
effects  are  attached  is  the  garnishee,  because  he  is 
garnisheed,  or  warned  not  to  deliver  them  to  the  de- 
fendant, but  to  answer  the  plaintiff's  suit.  In  most 
of  the  states  the  garnishee  responds  to  the  proceed- 
ings against  him  by  a  sworn  answer  to  interroga- 
tories propounded  to  him,  which  in  some  states  is 
held  to  be  conclusive  as  to  his  liability,  but  generally 
may  be  controverted  and  disproved,  although  in  the 
absence  of  contradictory  evidence  it  is  always  taken 
to  be  true. 

The  action  is  begun  by  affidavit,  which,  in  the  state 
of  Illinois,  may  be  in  the  following  form: 

AFFIDAVIT 

State  of  Illinois,  ) 
County  of  Cook,  ) 

In  the  Circuit  Court  of  Cook  County. 

James  Block,  ) 

Plaintiff,  ) 

) 

vs.  ) 

) 

Hugh  W.  Wilson,  ) 

Defendant.  ) 

First  National  Bank,  ) 

Garnishee.  ) 

James  Block,  being  first  duly  sworn,  deposes  and  says  that 
on  July  14,  1911,  or  thereabouts,  this  affiant  recovered  a  judg- 
ment against  said  Hugh  W.  Wilson  for  the  sum  of  Four  Hun- 

34 


HOW  TO  DO  LAW  OFFICE   STENOGRAPHY 

dred  Dollars  and  costs  of  said  suit ;  that  shortly  thereafter  a 
writ  of  execution  issued  out  of  the  office  of  the  clerk  of  said 
Circuit  Court  of  Cook  county,  upon  said  judgment  against 
said  Hugh  W.  Wilson  and  was  delivered  to  the  sheriff  of  Cook 
county  on  July  16,  1911 ;  that  the  sheriff  of  said  Cook  county 
made  a  demand  upon  said  writ  of  execution  that  the  said  Hugh 
W.  Wilson  turn  out  property  real  or  personal  for  the  satisfac- 
tion of  said  judgment ;  that  said  Hugh  W.  Wilson  refused  to 
turn  out  property  in  compliance  to  said  demand ;  and  that  said 
sheriff  of  Cook  County  has  on  the  20th  day  of  July,  1911,  made 
a  return  upon  said  writ  of  "No  property  found." 

Affiant  further  saith  that  said  defendant  Hugh  W.  Wilson 
has  no  property  within  the  knowledge  of  this  affiant,  in  his 
possession,  liable  to  execution;  and  that  this  affiant  has  just 
reason  to  believe  that  the  First  National  Bank,  a  corporation, 
is  indebted  to  the  said  Hugh  W.  Wilson  or  has  in  its  pos- 
session, custody,  or  charge,  effects  or  estate  of  said  defendant 
Hugh  W.  Wilson. 

And  further  affiant  saith  not. 


Subscribed,  etc. 

Ii  terrogatories  to  the  garnishee  summoned  in  this  case : 

1.  Had  you  or  either  of  you  in  your  possession,  charge,  or 
control,  at  the  date  of  the  service  of  the  writ  in  this  cause,  any 
moneys,  rights,  credits  or  effects  owned  by  or  due  to  Hugh  W. 
Wilson?     If  so,  state  what  rights,  amounts  thereof,  by  whom 
due  and  when  payable? 

2.  Were  you  indebted  to  said  Hugh  W.  Wilson  at  the  date 
of  the  service  of  said  writ  of  garnishment  ?    If  so,  how  much, 
for  what  due  and  when  payable  ? 

3.  State  what  effects  or  debts  of  the  said  Hugh  W.  Wilson 
there  were  at  the  date  of  the  said  writ  of  garnishment,  in  the 
hands  of  any  other  person  or  persons  besides  yourselves,  to  the 
best  of  your  knowledge  and  belief. 

4.  Had  you,  in  your  possession,  charge  or  custody  at  the 
date  of  the  service  of  said  writ,  any  lands,  tenements,  goods 
or  chattels  of  said  Hugh  W.  Wilson  ?    If  so,  state  the  descrip- 
tion of  each  piece  or  parcel  of  land  and  its  value. 

5.  Had  you,  at  the  date  of  service  of  said  writ,  any  rights, 

35 


HOW  TO  DO  LAW  OFFICE  STENOGRAPHY 

credits  or  effects  of  said  Hugh  W.  Wilson  (not  hereinbefore 
specified)  in  your  possession,  charge  or  custody,  from  you  or 
either  of  you  due  and  owing  at  the  service  of  said  writ,  or  any- 
time since,  or  which  may  hereafter  become  due?  If  so,  state 
the  value,  amount,  when  due  and  how  payable. 

6.  Had  you,  or  either  of  you,  any  property,  goods,  chattels, 
rights,  credits,  or  effects  of  any  kind  belonging  to  the  said 
Hugh  W.  Wilson,  or  in  which  he  is  interested?     If  so,  de- 
scribe the  same  fully  and  particularly,  giving  the  items  and 
amounts. 

7.  What  contract,  if  any,  has  been  entered  into  by  you  or 
either  of  you,  jointly  or  severally,  with  the  said  Hugh  W. 
Wilson  for  the  sale  or  purchase  of  real  estate  ? 

8.  If  in  the  answer  to  interrogatory  seven  you  state  that 
there  is  a  contract  as  above  stated,  then  set  forth  the  contract 
and  what  amounts,  if  any,  have  been  paid  by  you  upon  said 
contract. 

HABEAS  CORPUS 

Habeas  Corpus  is  a  writ  directed  to  a  person  de- 
taining another  and  commanding  him  to  produce  the 
body  of  the  prisoner  at  a  certain  time  and  place,  with 
the  day  and  cause  of  his  detention,  to  do,  submit 
to,  and  to  receive  whatsoever  the  court  or  judge 
awarding  the  writ  shall  consider  in  that  behalf. 

This  is  the  most  famous  writ  in  the  law;  and,  as 
for  many  centuries  it  has  been  employed  to  remove 
illegal  restraint  upon  personal  liberty,  no  matter  by 
what  power  imposed,  it  is  often  called  the  great  writ 
of  liberty. 

The  following  is  the  form  for  a  writ  of  Habeas 
Corpus  in  Illinois  for  the  purpose  of  securing  custody 
of  a  child: 

To  the  Honorable,  the  Judges  of  the  Circuit  Court  of  the 

county  of  Cook,  state  of  Illinois: 
The  petition  of  Fannie  Pierce,  by  Susan  Pierce,  her  next 

36 


friend,  respectfully  shows  unto  your  honors  that  Fannie 
Pierce,  a  girl  of  fourteen  years  of  age,  is  wrongfully  restrained 
of  her  liberty  and  possession  of  her  body  held  by  Wallace 
Davis  and  Martha  Davis,  his  wife,  of  the  city  of  Chicago, 
county  of  Cook,  and  is  not  detained  by  virtue  of  any  process, 
judgment,  decree  or  execution  specified  in  the  twenty-first 
section  of  the  Act  on  habeas  corpus,  which  is  chapter  65  of  the 
statutes  of  the  state  of  Illinois.  And  your  petitioner  further 
avers  that  said  Fannie  Pierce  is  the  only  child  of  Charles 
Pierce,  late  of  the  city  of  Chicago,  Cook  county,  Illinois,  who 
departed  this  life  upon  the  12th  day  of  May,  1912,  at  Chicago, 
Illinois,  testate,  and  in  and  by  his  last  will  and  testament  de- 
vised property  to  the  value  of  not  less  than  one  thousand 
($1,000)  dollars  to  his  said  daughter,  Fannie  Pierce,  but  did 
not  in  and  by  his  last  will  and  testament  appoint  a  guardian 
of  the  person  of  his  said  daughter,  or  commit  the  care  and 
custody  of  his  said  daughter  to  anyone  whomsoever,  as  appears 
by  the  last  will  and  testament  of  said  Charles  Pierce,  a  copy 
of  which  is  attached  hereto  and  made  a  part  hereof  as  exhibit 
11  A."  That  the  said  Fannie  Pierce  is  a  child  fourteen  years 
of  age  and  that  the  mother  of  Fannie  Pierce  departed  this  life 
at  the  birth  of  said  Fannie  Pierce,  fourteen  years  ago;  that 
the  said  Fannie  Pierce  has  been  in  the  care  and  custody  of 
said  Wallace  Davis  and  Martha  Davis,  for  whose  care  and 
custody  the  said  Charles  Pierce  paid  the  said  Wallace  Davis 
and  Martha  Davis  during  his  lifetime  the  sum  of  twelve  ($12) 
dollars  a  month,  as  your  petitioner  is  informed  and  believes; 
that  the  said  Charles  Pierce  died  leaving  neither  father  nor 
mother,  but  three  sisters,  as  follows:  Anna  Pierce,  Susan 
Pierce  and  Mary  Pierce,  the  aunts  respectively  of  said 
Fannie  Pierce,  who  are  her  next  of  kin  and  are  entitled 
to  the  care  and  custody  of  the  person  of  said  Fannie 
Pierce.  That  said  Wallace  Davis  and  Martha  Davis  are  not 
related  by  consanguinity  or  affinity  with  the  said  Fannie 
Pierce  and  that  they  are  not  able  to  afford  the  said  Fannie 
Pierce  the  necessary  means  for  support  and  education  in  the 
station  of  life  in  which  her  father,  said  Charles  Pierce,  was 
born  and  educated,  and  that  the  estate  left  to  said  Fannie 
Pierce  by  her  said  father  is  insufficient,  if  invested  to  the  best 
possible  advantage,  to  support  and  educate  her  in  her  station 
of  life,  and  that  Anna  Pierce,  the  aunt  of  said  Fannie  Pierce, 

37 


HOW  TO  DO  LAW  OFFICE  STENOGRAPHY 

and  her  two  sisters,  are  desirous  of  establishing  a  home  where 
they  reside  in  Chicago,  Illinois,  being  each  of  them  devisees 
under  their  father's  will  of  an  income  approximately  of  two 
thousand  ($2,000)  dollars  a  year  for  each  of  said  sisters,  and 
each  of  said  sisters  has  independently  of  said  will  three 
thousand  ($3,000)  dollars  a  year  which  will  enable  them  to 
care  for  and  support  the  said  Fannie  Pierce  according  to  her 
station  in  life. 

Further,  your  petitioner  shows  that  the  said  Wallace  Davis 
has  two  children  of  his  own  and  that  the  estate  left  by  Charles 
Pierce  to  his  said  daughter,  Fannie  Pierce,  is  totally  insuffi- 
cient to  educate  and  clothe  her  as  she  could  be  educated  and 
clothed  by  her  aunt,  Anna  Pierce,  in  case  the  custody  of  your 
petitioner  be  awarded  to  her  said  aunt. 

Further,  your  petitioner  alleges  that  under  the  last  will  and 
testament  of  said  Charles  Pierce,  Willis  Proctor  and  Charles 
Barnes,  all  of  Chicago,  Illinois,  are  named  as  trustees  of  the 
estate  of  said  Charles  Pierce,  and  have  also  been  appointed 
executors  of  said  estate  and  have  accepted  said  trust,  and  that 
the  said  trustees  have  without  authority  committed  the  care 
and  custody  of  the  person  of  the  said  Fannie  Pierce  for  the 
time  being  to  said  Wallace  Davis  and  Martha  Davis. 

Further,  your  petitioner  says  that  her  aunt,  Anna  Pierce, 
is  desirous  of  educating  and  caring  for,  to  the  best  of  her 
means  and  ability,  her  said  niece,  your  petitioner,  Fannie 
Pierce,  and  that  said  Anna  Pierce  resides  at  Chicago,  Illinois, 
and  that  it  will  be  for  the  best  interests  of  your  petitioner,  the 
said  Fannie  Pierce,  that  she  be  committed  to  the  care  and 
custody  of  said  Anna  Pierce. 

Wherefore,  your  petitioner  prays  a  writ  of  habeas  corpus 
to  Wallace  Davis  and  Martha  Davis  to  produce  the  body  of 
Fannie  Pierce  before  Judge  Kavanagh  at  the  court  house,  in 
Chicago,  Illinois,  on  Saturday,  November  4,  1916,  at  ten 
o'clock  A.  M.,  to  the  end  that  said  Fannie  Pierce  may  be  dis- 
charged from  the  custody  of  Wallace  Davis  and  Martha  Davis 
and  be  delivered  to  your  petitioner's  aunt,  Anna  Pierce. 


By 

Her  next  friend. 

38 


HOW  TO  DO  LAW  OFFICE   STENOGRAPHY 


MANDAMUS 

The  writ  of  mandamus  usually  issues  out  of  the 
highest  court  of  general  adjudication  in  a  state,  in  the 
name  of  the  sovereignty,  and  is  directed  to  any  person, 
corporation,  or  inferior  court  of  judicature  within  its 
jurisdiction,  requiring  them  to  do  some  particular  thing 
therein  specified,  and  which  appertains  to  their  office  or 
duty.  It  is  an  extraordinary  remedy  in  cases  where 
the  ordinary  modes  of  procedure  are  powerless  to  af- 
ford remedies  to  the  parties  aggrieved,  and  when, 
without  its  aid,  it  would  be  a  failure  of  justice. 

Mandamus  is  a  common  law  action  and  is  governed 
by  the  same  rules  as  are  actions  at  law.  This  action 
is  begun  by  a  petition,  the  party  bringing  the  action 
being  generally  designated  as  the  relator. 

A  form  for  a  petition  for  a  writ  of  mandamus,  such 
as  prevails  in  the  State  of  Illinois,  follows  : 

State  of  Illinois,  )  gg 
County  of  Cook,    ) 

In  the  Circuit  Court  of  the  county  of  Cook. 

In  the  name  and  by  the  authority  of  the  ) 
people  of  the  State  of  Illinois,  ex-relatione  ) 
Martha  Jackson,  ) 


vs. 


) 


Julius  Walberg  and  Edward  Steele,  ) 

Trustees.  ) 

To  the  honorable,  the  judges  of  said  Circuit  Court. 
Your  petitioner,  the  people  of  the  state  of  Illinois,  on  the 


39 


HOW  TO  DO  LAW  OFFICE  STENOGRAPHY 

relation  of   Martha  Jackson,   respectively   shows  unto  your 
honors : 

1.  That  the  said  relator  is  a  resident  of  the  city  of  Chicago, 
in  the  county  and  state  aforesaid;  that  she  is  the  widow  of 
Peter  Jackson,  deceased ;  that  on  or  about  the  first  day  of  Sep- 
tember, 1901,  the  said  Peter  Jackson  became  a  member  of  the 
police  department  of  the  city  of  Chicago,  and  so  remained  a 
member  from  said  date  to  the  4th  day  of  June,  1914,  on  which 
day  he  died. 

2.  That  the  said  Peter  Jackson  while  a  member  of  the  said 
police  department  held  the  position  or  office  of  inspector  of 
the  said  police  department  of  said  city,  and  likewise  acted  as 
inspector  of  the  men  composing  the  department  of  said  city ; 
that  while  engaged  in  the  actual  discharge  of  the  duties  of 
said  office  or  position,  on  the  4th  day  of  June,  1914,  he  was 
stricken   down    and    became    physically  ill   because   of  the 
physical  efforts  exerted  by  him,  and  which  were  necessary  to 
be  exerted  by  him  in  carrying  out  and  performing  his  afore- 
said duties ;  and  that  as  a  result  of  said  physical  ailments  and 
disability,  so  caused  as  aforesaid,  the  said  Peter  Jackson  died, 
as  hereinbefore  set  forth. 

3.  That  at  the  time  the  said  Peter  Jackson  became  a  mem- 
ber of  said  police  department  there  had  been  established  in 
said  city  of  Chicago  a  police  and  firemen's  relief  fund,  in  ac- 
cordance with  an  Act  of  the  General  Assembly  of  the  state  of 
Illinois,  entitled,  "An  Act  to  amend  an  Act  for  the  relief  of 
disabled  members  of  the  police  and  fire  departments  in  cities 
and  villages,"  approved  May  24,  1877,  in  force  July  1,  1877, 
approved  May  10,  1879,  in  force  July  1,  1879,  and  which 
police  and  firemen's  relief  fund  continued  to  be  established 
and  maintained  in  accordance  with  the  provisions  of  said  Act 
until  amended  by  the  Act  of  1887,  as  hereinbefore  set  forth ; 
and  that  the  said  Peter  Jackson  became  a  member  of  said 
police  and  firemen's  relief  fund  at  the  time  he  joined  said 
police  department,  and  continued  to  be  a  member  thereof  in 
good  standing  until  the  date  of  his  death. 

4.  That  after  the   death  of  said  Peter  Jackson,   and  as 
his  widow,  Martha  Jackson,  the  relator,  made  application  to 
the  trustees  of  said  police  and  firemen's  relief  fund  for  the 
payment  to  her  as  such  widow,  so  long  as  she  should  remain 

40 


HOW  TO  DO  LAW  OFFICE  STENOGRAPHY 

unmarried,  a  sum  of  money  not  exceeding  Seven  Hundred  and 
Twenty  ($720.00)  Dollars  per  annum,  in  accordance  with  the 
provisions  of  said  Act,  and  submitted  to  said  trustees  proof 
of  the  death  of  said  Peter  Jackson,  and  that  his  death  was 
the  immediate  effect  of  an  injury  received  by  him  while  in  the 
discharge  of  his  duties  as  such  officer  and  member  of  said 
police  department ;  that  such  proceedings  were  thereupon  had 
by  such  trustees  that  they  found  said  application  to  be  in 
all  respects  regular  and  in  accordance  with  law,  and  that 
said  Peter  Jackson's  death  was  the  immediate  effect  of  an 
injury  received  by  him  while  in  the  actual  discharge  of  his 
duties  as  such  officer  and  member  of  the  police  department, 
and  awarded  to  the  relator  an  annual  pension  of  Seven  Hun- 
dred and  Twenty  ($720.00)  Dollars  per  annum,  so  long  as 
she  should  remain  unmarried. 

5.  The  said  trustees  thereupon  proceeded  to  make  payment 
to  said  relator,  commencing  on  or  about  the  first  day  of  July, 
1914,  of  the  sum  of  Seven  Hundred  and  Twenty  ($720.00) 
Dollars,  and  continued  to  make  payment  of  said  sum  until  the 
formation  of  the  Board  of    Police    Pension  Fund  Commis- 
sioners, under  and  by  virtue  of  the  provisions  of  an  Act  of 
the  General  Assembly  of  the  state  of  Illinois,  entitled,  "An 
Act  to  provide  for  the  setting  apart,  formation,  and  disburse- 
ment of  the  police  pension  fund  in  cities,  villages,  and  in  in- 
corporated towns,"  approved  April  29,  1887,  and  in  force 
July  1,  1887. 

6.  That  in  accordance  with  the  provisions  of  said  last  men- 
tioned Act,  on  the  1st  day  of  January,  1916,  the  said  city  of 
Chicago,  having  a  population  of  more  than  one  million  five 
hundred  thousand  inhabitants,  immediately  arranged  for  the 
formation  and  disbursement  of  the  police  pension  fund  in  ac- 
cordance with  the  provisions  of  said  last  mentioned  Act ;  that 
there  was  then  and  there  established  a  Board  of  Police  Pension 
Fund  Commissioners  in  accordance  with  the  provisions  of  said 
Act,  who  then  and  there  proceeded  to  comply  with  and  carry 
out  the  provisions  of  said  Act;  and  that  in  accordance  with 
the  provisions  of  Section  12  of  said  Act,  the  said  relator, 
Martha  Jackson,  then  and  there  became  and  was  entitled  to 
receive  the  benefits  provided  for  in  said  Act. 

7.  That  at  the  time  of  the  death  of  said  Peter  Jackson,  the 
salary  attached  to  the  rank  which  he  held  in  said  police  de- 

41 


HOW  TO  DO  LAW  OFFICE  STENOGRAPHY 

partment  was  Fourteen  Hundred  and  Forty  ($1,440.00) 
Dollars  per  annum;  that  in  the  month  of  January,  1916,  in 
accordance  with  the  provisions  of  Section  6  of  said  last  men- 
tioned Act,  the  said  Board  of  Police  Pension  Fund  Commis- 
sioners ordered  and  directed  that  a  yearly  pension  of  Seven 
Hundred  and  Twenty  ($720.00)  Dollars  should  be  paid  to 
the  relator,  as  such  widow;  that  from  that  time  until  on  or 
about  the  1st  day  of  July,  1916,  said  relator  was  duly  and 
regularly  paid  said  yearly  pension  of  Seven  Hundred  and 
Twenty  ($720.00)  Dollars  per  annum,  in  monthly  installments 
of  Sixty  ($60.00)  Dollars  each. 

8.  That  on  the  first  day  of  July,  1916,  there  went  into  effect 
an  Act  of  the  General  Assembly  of  the  state  of  Illinois,  en- 
titled, "An  Act  to  amend  Sections  1,  2,  3,  4,  6,  9,  10,  and  11 
of  an  Act  entitled,  'An  Act  to  provide  for  the  setting  apart, 
formation,  and  disbursement  of  the  police  pension  fund  in 
cities,  villages,  and  in  incorporated  towns,'  "  approved  April 
29,  1887,  in  force  July  1,  1887,  as  amended  by  an  Act  ap- 
proved April  24,  1899,  in  force  July  1,  1899,  as  amended  by 
an  Act  approved  May  11,  1901,  in  force  July  1,  1901 ;  and 
that  in  accordance  with  the  provisions  of  said  Act  there  was 
therefore  appointed  by  the  Mayor  of  the  city  of  Chicago 
three   (3)   persons  as  constituting  the  Board  of  Trustees  of 
the  Police  Pension  Fund  of  the  City  of  Chicago,  such  persons 
being  Julius  Walberg  and  Edward  Steele,  the  other  member 
of  said  board  provided  for  by  said  Act  having  not  yet  been 
appointed. 

9.  That  said  Julius  "Walberg  and  Edward  Steele  duly  quali- 
fied as  such  members  of  the  Board  of  Trustees  of  the  Police 
Pension  Fund,  and  are  now  acting  as  such  Board  of  Trustees ; 
that  on  or  about  the  first  day  of  September,  1916,  said  Board 
of  Trustees  passed  a  resolution  by  which  they  refused  to  any 
longer  pay  to  said  Martha  Jackson  the  pension  which  had 
been  awarded  to  her  as  hereinbefore  set  forth ;  and  ever  since 
said  day  have  refused  and  still  do  refuse  to  pay  to  said  re- 
lator said  pension  or  any  part  thereof,  although  under  the 
provisions  of  said  Act  of  1901,  said  relator  is  entitled  to  be 
paid  a  yearly  pension  of  Seven  Hundred  and  Twenty  ($720.00) 
Dollars. 

10.  That  on  or  about  the  3rd  day  of  September,  1916,  this 
relator  received  from  the  clerk  of  said  Board  of  Trustees  a 

42 


HOW  TO  DO  LAW  OFFICE  STENOGRAPHY 

letter  questioning  the  cause  of  the  death  of  said  Peter  Jackson, 
and  stating  that  said  pension  had  been  stopped  by  said  Board 
of  Trustees,  as  before  set  forth;  that  said  relator  thereupon 
protested  to  said  board  that  they  had  no  right  or  authority  to 
call  upon  said  relator  for  additional  proofs  of  the  cause  of 
death  of  said  Peter  Jackson ;  that  they  had  no  right  or  author- 
ity to  strike  her  name  from  the  roll  of  beneficiaries  of  said 
pension  fund,  and  to  refuse  to  pay  her  the  pension  to  which 
she  was  entitled  under  the  provisions  of  said  Act  of  1901 ;  and 
that  on  the  8th  day  of  September,  1916,  she  delivered  to  said 
Board  of  Trustees  a  protest  in  writing  to  the  above  effect; 
that  said  Board  of  Trustees  thereupon  refused  to  rescind  its 
previous  action  in  the  premises,  and  refused  to  consider  said 
relator  as  entitled  to  any  of  the  benefits  of  said  fund  or  to 
order  the  payment  to  her  of  any  sum  whatsoever  as  a  bene- 
ficiary of  said  fund ;  and  said  board  still  does  refuse  so  to  do. 

11.  That  under  and  by  virtue  of  the  provisions  of  Section 
12  of  the  Act  of  1887,  which  section  is  still  in  full  force  and 
effect,  unchanged  and  unmodified  by  the  Act  of  1901,  the  said 
Board  of  Trustees  is  in  duty  bound  to  recognize  the  rights  of 
the  relator  herein  as  coming  within  the  special  class  of  persons 
receiving  benefits  under*  the  Act  of  1879,  and  therefore  en- 
titled to  the  benefits  of  the  Act  of  1901 ;  that  said  Board  of 
Trustees  has  no  power,  right,  or  authority  to  pass  upon  the 
validity  of  the  pension  of  the  relator ;  and  that  the  relator  has 
no  remedy  in  the  premises  except  by  the  aid  and  order  of  this 
honorable  court. 

Your  petitioner,  therefore,  presents  this  petition,  and  prays 
that  a  writ  of  mandamus  do  forthwith  issue  from  said  court 
to  the  said  Julius  Walberg  and  Edward  Steele,  members  of 
said  Board  of  Trustees  of  the  Pension  Fund  of  the  city  of 
Chicago;  that  said  board  be  commanded  forthwith  to  enroll 
the  name  of  Martha  Jackson  as  one  of  the  beneficiaries  of  the 
pension  fund  of  the  City  of  Chicago,  as  the  widow  of  Peter 
Jackson,  deceased,  to  order  the  payment  to  her  from  the  first 
day  of  July,  1916,  of  an  annual  pension  of  Seven  Hundred 
and  Twenty  ($720.00)  Dollars  per  annum,  so  long  as  she 
lived  or  until  she  married  again ;  and  to  order  the  president 
and  the  secretary  of  said  board  to  execute  and  deliver  to  said 
relator  the  certificate  provided  by  law  for  the  amount  of  money 
so  ordered  paid  to  her  as  such  beneficiary ;  that  the  president 

43 


HOW  TO  DO  LAW  OFFICE  STENOGRAPHY 

of  said  board  and  the  secretary  thereof  be  commanded  and 
directed  to  sign  said  certificate  and  deliver  the  same  to  the 
relator;  that  said  Board  of  Trustees  be  commanded  and 
directed  to  do  any  and  other  things  that  may  be  requisite 
and  necessary  and  to  execute  any  and  all  vouchers,  certificates, 
and  other  instruments  that  may  be  requisite  and  necessary  to 
enable  the  said  Martha  Jackson  to  be  paid  from  said  police 
pension  fund  the  annuity  to  which  she  is  entitled  as  such 
beneficiary  and  as  the  widow  of  said  Peter  Jackson,  deceased ; 
and  that  such  other  and  further  orders  may  be  made  in  the 
premises  as  justice  may  require. 

People  of  the  State  of  Illinois. 

Ex  rel  

State  of  Illinois,  ) 
County  of  Cook,    ) 

Martha  Jackson,  being  first  duly  sworn  on  oath,  deposes 
and  says  that  she  is  the  relator  named  in  the  foregoing  peti- 
tion ;  that  she  has  heard  read  the  above  and  foregoing  petition 
and  knows  the  contents  thereof,  and  that  the  same  is  true. 


Subscribed  and  sworn  to  before  me  this  6th  day  of  Novem- 
ber, 1916. 


Notary  Public. 

QUO   WAEBANTO 

Quo  Warranto  is  the  name  of  a  writ,  and  also  of 
the  whole  pleading,  by  which  the  government  com- 
mences an  action  to  recover  an  office  or  franchise 
from  the  person  or  a  corporation  in  possession  of  it. 
The  meaning  of  Quo  Warranto  is  "by  what 
authority. ' ' 

The  writ  commands  the  sheriff  to  summon  the  de- 
fendant to  appear  before  the  court  to  which  it  is 
returnable  to  show  by  what  authority  he  claims  the 
office  or  franchise. 

The  proceeding  is  prosecuted  in  the  name  of  the 

44 


HOW   TO  DO  LAW  OFFICE   STENOGRAPHY 

people  of  the  state,  and  is  begun  by  a  petition  or 
information. 

The  following  is  a  form  of  an  information  in  the 
nature  of  a  writ  of  quo  warrantor 

State  of  Illinois,  ) 
County  of  Cook,  )     ss' 

In  the  Circuit  Court  of  Cook  County. 

The  people  of  the  State  of  Illinois,  ) 

> 
vs.  ) 

) 

Matlock  Matthews,  Robert  Daniel  and          ) 
Hugh  Phillips.  ) 

Your  petitioner,  Donald  Pratt,  State's  Attorney  in  and  for 
the  county  of  Cook,  and  state  of  Illinois,  respectively  repre- 
sents unto  your  honors : 

That  at  the  regular  annual  election  held  in  the  village  of 
Grayson,  in  said  county,  on  November  6,  1913,  Matlock 
Matthews,  Robert  Daniel  and  Hugh  Phillips  were  duly  elected 
to  the  office  of  village  trustees  of  said  village  for  the  term  of 
two  years,  and  until  their  successors  should  be  elected  and 
qualified;  that  they,  and  each  of  them,  qualified  for  and 
accepted  said  office  within  the  time  prescribed  by  law,  and 
entered  upon  the  duties  of  said  office,  as  they  might  rightfully 
do ;  that  at  the  regular  annual  election  held  in  said  village  on 
November  7,  1915,  Arnold  Fleming  received  the  highest  num- 
ber of  votes  for  president  of  the  board  of  trustees  and  was,  in 
fact,  duly  elected  president  of  the  board  of  trustees  of  said 
village;  and  Drew  Linard,  M.  M.  "Wyvell  and  Ben  G.  Davis 
received  the  three  highest  number  of  votes  for  trustees  of  said 
village,  and  became  the  successors  of  said  Matlock  Matthews, 
Robert  Daniel  and  Hugh  Phillips;  and  within  the  time  re- 
quired by  law  said  Drew  Linard,  M.  M.  Wyvell  and  Ben  G. 
Davis  duly  qualified  themselves  to  fill  the  positions  to  which 
they  were  so  elected;  but  that  the  said  Matlock  Matthews, 
Robert  Daniel  and  Hugh  Phillips  refused  and  still  do  refuse 
to  surrender  said  offices  of  village  trustees. 

45 


HOW  TO  DO  LAW  OFFICE   STENOGRAPHY 

That  there  was,  pursuant  to  law,  submitted  to  a  vote  of  the 
electors  of  said  village  at  said  annual  election  of  November  7, 
1915,  the  question  as  to  whether  said  village  should  become 
incorporated  as  a  city  under  the  general  law  relating  to  cities 
and  villages,  passed  April  10,  1872;  that  at  said  annual  elec- 
tion there  appeared  upon  the  ballot  cast  at  said  election,  to- 
gether with  the  names  of  the  various  candidates  to  be  voted 
for,  the  following  propositions : 

' '  For  city  organization  under  the  general  law. ' ' 
"Against  city  organization  under  the  general  law." 

That  it  appears  from  the  poll  books  of  said  election  and  the 
votes  thereof,  that  nine  hundred  and  sixty-two  ballots  were 
cast  by  the  voters  of  said  village  at  said  election ;  that  four 
hundred  and  eight  of  said  votes  were  cast  in  favor  of  city 
organization,  and  three  hundred  and  ninety-six  votes  were 
cast  against  said  city  organization ;  and  that  the  voters  of  one 
hundred  and  fifty-eight  did  not  mark  their  ballot  either  in 
favor  of  said  city  organization  or  against  said  city  organiza- 
tion. 

That  at  a  meeting  of  the  board  of  trustees  of  said  village, 
held  on  November  20,  1915,  it  was  determined  by  said  board 
that  the  vote  in  favor  of  said  city  organization  under  the 
general  law  had  been  carried;  that  thereupon  said  board 
ordered  the  result  of  said  election  to  be  entered  upon  the 
records  of  said  village ;  that  said  entry  was  accordingly  made ; 
and  a  certified  copy  of  the  same  was  filed  in  the  recorder's 
office  in  said  county. 

That  said  Matlock  Matthews,  Robert  Daniel  and  Hugh 
Phillips  are  continuing  to  exercise  the  right  and  perform  the 
duties  of  trustees  of  said  village,  alleging  that  they  are  author- 
ized to  do  so  by  Section  3,  Article  1,  Chapter  24,  revised 
statutes  of  the  state  of  Illinois,  notwithstanding  the  fact  that 
the  said  Drew  Linard,  M.  M.  Wyvell  and  Ben  G.  Davis  are 
their  duly  elected  and  qualified  successors;  and  they  assert 
that  they  expect  to  continue  to  act  as  such  trustees  until  city 
officers  for  said  village  of  Grayson  have  been  elected  and 
qualified  by  law. 

That  said  proposition  for  city  organization  under  the  gen- 
eral law  was  not  carried  at  said  election  of  November  7,  1915, 
because  a  majority  of  the  votes  cast  at  such  election  were  not 
in  favor  of  such  city  organization  •  only  four  hundred  and 

46 


HOW  TO  DO  LAW  OFFICE   STENOGRAPHY 

eight  ballots  of  the  total  nine  hundred  and  sixty-two  ballots 
cast  at  said  election  were  in  favor  of  said  proposition,  whereas 
a  majority  of  said  nine  hundred  and  sixty-two  votes  was  neces- 
sary under  the  statute  to  affirmatively  carry  said  proposition 
of  city  organization. 

That  said  proposition  for  city  organization  was  not  carried 
for  the  further  reason  that  said  propositions  for  city  organiza- 
tion and  against  city  organization  were  improperly  submitted 
to  the  electors  upon  the  same  ballot  containing  the  names  of 
various  persons  to  be  voted  for  for  the  offices  of  president  and 
members  of  the  board  of  trustees  of  said  villages,  instead  of 
upon  separate  ballots  as  by  law  required. 

That  an  order  be  entered  herein  allowing  him  as  such  state's 
attorney,  upon  the  relation  of  said  Drew  Linard,  M.  M.  Wy- 
vell  and  Ben  G.  Davis,  to  file  an  information  in  the  nature  of 
quo  ivarranto  against  the  said  Matlock  Matthews,  Robert 
Daniel  and  Hugh  Phillips,  requiring  them  to  make  answer  unto 
the  people  of  the  State  of  Illinois  by  what  warrant  they  claim 
to  hold  and  execute  the  offices  of  trustees  of  said  village  of 
Grayson ;  and  that  a  summons  may  thereupon  be  issued  against 
Matlock  Matthews,  Robert  Daniel  and  Hugh  Phillips,  as  is  by 
the  statute  in  such  case  provided. 

And  your  petitioner  will  ever  pray,  etc. 


State's  Attorney. 
(Verification.) 

SCIBE  FACIAS 

SCIEE  FACIAS  is  the  name  of  a  writ  (and  of  the 
whole  proceedings)  founded  on  some  public  record. 
It  is  a  judicial  writ  at  common  law  to  revive  judg- 
ments or  to  obtain  satisfaction  thereof. 

A  judgment  is  the  decision  or  sentence  of  the  law 
given  by  a  court  of  justice  or  other  competent  tri- 
bunal as  the  result  of  proceedings  instituted  therein 
for  the  redress  of  an  injury.  Final  judgment  is  one 
which  puts  an  end  to  the  suit.  Judgment  upon  ver- 

47 


HOW  TO  DO  LAW  OFFICE  STENOGRAPHY 

diet  is  the  most  usual  of  the  judgments  upon  facts 
found,  and  is  for  the  party  obtaining  the  verdict. 

After  judgment,  and  for  the  purpose  of  carrying 
into  effect  the  judgment,  and  even  before  the  judg- 
ment is  entered  of  record,  the  plaintiff  may,  in  gen- 
eral, at  any  time  within  a  year  and  a  day,  and  whilst 
the  parties  to  the  judgment  continue  the  same,  take 
out  execution.  At  common  law,  after  a  year  and 
a  day  from  the  time  of  signing  judgment,  the  plaintiff 
can  not  regularly  take  out  execution  without  reviving 
the  judgment  by  scire  facias. 

Scire  facias  is  begun  by  a  prcecipe,  which  pr&cipe, 
in  Illinois,  would  read  as  follows: 


State  of  Illinois,  ) 

In  the  Circuit  Court  of  Cook  County. 


County  of  Cook,  ) 


John  Doe,  ) 

Plaintiff,  ) 

) 

vs.  ) 

) 

Richard  Roe,  ) 

Defendant.  ) 

The  clerk  of  said  court  will  issue  a  scire  facias  to  revive  the 
judgment  rendered  hi  the  above  entitled  cause  on  the  6th  day 
of  October,  1900,  for  the  sum  of  eight  hundred  dollars 
($800.00),  direct  the  same  to  the  sheriff  of  Cook  County  to 
execute,  and  make  it  returnable  to  the  October  term  of  said 
court,  1916. 

This  4th  day  of  September,  1916. 


Plaintiff's  Attorney. 

To  John  Cooke,  Esq.,  Clerk. 

48 


HOW  TO  DO  LAW  OFFICE  STENOGRAPHY 


WRIT  OF  SCIRE  FACIAS 

State  of  Illinois,  ) 
County  of  Cook,  ) 


In  the  Circuit  Court  of  Cook  County. 

John  Doe,  ) 

Plaintiff,   )  Date  of  ^udf 

N  ment,  October 

)  A6-19°% 

x  Amount  of 

Richard  Roe  judgment, 

iticnara  itoe,  , 

Defendant.  ) 


The  people  of  the  state  of  Illinois,  to  the  sheriff  of  said 
county,  greeting: 

Whereas,  at  the  October  term  of  the  Circuit  Court  of  Cook 
county,  held  in  and  for  the  county  of  Cook  and  state  of 
Illinois,  to-wit,  on  the  first  day  of  October,  1900,  before  the 
said  court,  then  judicially  sitting  at  the  court  house,  in  the 
city  of  Chicago  in  said  county  of  Cook,  plaintiff  by  the  judg- 
ment and  consideration  of  said  court,  recovered  a  judgment 
in  a  certain  action  then  pending  in  said  court  against  Richard 
Roe  for  the  sum  of  eight  hundred  ($800)  dollars  damages 
and  the  costs  of  suit,  as  appears  to  us  of  record. 

And  now,  on  behalf  of  the  said  plaintiff,  we  have  been 
informed  that  said  judgment  still  remains  in  full  force  and 
effect  and  in  no  wise  set  aside,  reserved,  paid  off  or  satisfied, 
and  that  execution  of  the  eight  hundred  dollars  ($800)  dam- 
ages and  the  costs  aforesaid  still  remains  to  be  made  to  the 
plaintiff;  wherefore,  the  said  plaintiff  hath  besought  us  to 
provide  him  a  proper  remedy  in  this  behalf. 

We  do  therefore  hereby  command  you  that  you  summon 
the  said  Richard  Roe,  if  he  shall  be  found  in  your  county,  per- 
sonally to  be  and  appear  before  the  said  Circuit  Court  of 
Cook  county,  on  the  first  day  of  the  next  term  thereof,  to  be 
holden  at  the  court  house,  in  the  city  of  Chicago,  in  said 
Cook  county,  on  the  third  Monday  of  October  next,  then  and 
there  to  show  cause,  if  any  he  have  or  can  show,  why  the  said 

49 


HOW  TO  DO  LAW  OFFICE   STENOGRAPHY 

judgment  should  not  be  revived  and  remain  in  full  force  and 
effect;  and  furthermore,  why  execution  should  not  issue 
against  Richard  Roe  for  the  eight  hundred  dollars  ($800.00) 
damages  and  costs  of  suit,  according  to  the  force,  form  and 
effect  of  the  said  recovery;  and  further  to  do  and  receive 
what  shall  then  and  there  be  adjudged  by  our  said  court  in 
the  premises.  And  have  you  then  and  there  this  writ,  witli 
your  return  thereon  in  what  manner  you  shall  have  executed 
the  same. 

Witness,  John  Cooke,  clerk  of  our  said  court,  and  the  seal 
thereof,  at  Chicago,  in  said  county,  this"  fourth  day  of  Sep- 
tember, 1916. 


Clerk. 
TRESPASS 

Trespass  is  an  action  to  recover  damages  for  in- 
juries sustained  by  a  plaintiff  as  an  immediate  con- 
sequence of  some  wrong  done  forcibly  to  his  person 
or  property. 

The  action  of  Trespass  is  distinguished  from  tres- 
pass on  the  case,  which  is  an  action  for  injuries  com- 
mitted without  force.  In  many  states  the  distinction 
between  trespass  and  trespass  on  the  case  is  abolished 
by  statute,  and  a  declaration  good  for  either  is  good 
for  both. 

The  action  lies  for  injuries  to  the  person  of  the 
plaintiff,  as  by  assault  and  battery,  wounding,  im- 
prisonment, and  the  like.  It  lies  also  for  forcible 
injuries  to  the  person  of  another,  whereby  a  direct 
injury  is  done  to  the  plaintiff  in  regard  to  his  rights 
as  parent,  master,  etc. 

Trespass  quare  clausum  fregit  (Lat.,  because  he 
had  broken  the  close),  is  a  form  of  action  which  lies 
to  recover  damages  for  injuries  to  real-estate  conse- 
quent upon  entry  without  right  upon  the  plaintiff's 

50 


HOW  TO  DO  LAW  OFFICE   STENOGRAPHY 

land.     Close  means  the  interest  a  person  lias  in  any 
piece  of  ground. 

Trespass  vi  et  armis  (Lat.,  with  force  and  arms), 
is  a  form  of  action  which  lies  to  recover  damages 
for  an  injury  which  is  the  immediate  consequence  of 
a  forcible  wrongful  act  done  to  the  person  or  per- 
sonal property. 

State  of  Illinois,   ) 
County  of  Cook,  ) 

In  the  Circuit  Court  of  Cook  County. 

John  C.  Hopkins,  ) 

Plaintiff,  ) 

) 

vs.  ) 

) 

Chicago  City  Railway  Company,  ) 
Defendant.  ) 

For  that  whereas,  the  said  defendant,  before  and  at  the 
time  of  the  committing  of  the  grievances  hereafter  mentioned, 
was  a  corporation  and  was  possessed  of  and  operating  a  cer- 
tain street  railway  in,  upon,  and  along  certain  public  streets 
commonly  known  respectively  as,  to-wit,  "Wabash  Avenue  and 
22nd  Street,  in  the  city  of  Chicago,  county  of  Cook,  and 
state  of  Illinois,  and  was  possessed  of  and  operating  certain 
cars,  and  was  a  common  carrier  of  passengers  by  means  of 
said  cars,  which  were  run  or  propelled  on  and  over  said  street 
railway  for  hire  and  reward  by  said  defendant  in  that  above 
mentioned  city,  to-wit,  at  the  city  of  Chicago,  aforesaid.  That 
said  22nd  Street  then  and  there  intersected  said  Wabash 
Avenue,  and  it  then  and  there  became  and  was  necessary  and 
customary  for  the  passengers  who  were  carried  by  the  de- 
fendant in  the  cars  of  the  defendant  upon  and  over  the  street 
railway  of  the  defendant,  in  and  upon  said  Wabash  Avenue, 
who  desired  to  be  carried  in  the  cars  of  defendant,  upon  and 
over  the  street  railway  of  the  defendant,  in,  upon  and  along 
said  22nd  Street  to  change  cars  or  transfer  from  said  Wabash 
Avenue  to  said  22nd  Street  cars  of  the  defendant. 

51 


HOW  TO  DO  LAW  OFFICE  STENOGRAPHY 

Plaintiff  further  avers  that  in  and  by  an  ordinance,  duly 
ordained  and  enacted  by  the  city  council  of  the  said  city  of 
Chicago,  on  or  about  the  25th  day  of  January,  1900,  the  de- 
fendant is  given  a  franchise  for  the  use  of  said  Wabash  Ave- 
nue and  22nd  Street,  upon  which  to  run  its  said  cars  over  the 
tracks  of  said  defendant  company,  as  will  more  fully  appear 
by  a  copy  of  said  ordinance  attached  hereto,  made  a  part 
hereof,  and  marked  "Exhibit  A." 

The  said  ordinance  was  duly  accepted  by  said  Chicago  City 
Railway  Company,  in  said  ordinance  mentioned,  in  manner 
and  form  as  provided  for  such  acceptance  in  and  by  said 
ordinance ;  that  the  street  railway  of  the  defendant  in,  along 
and  upon  said  Wabash  Avenue  was  constructed  and  w;is 
operated  by  the  Chicago  City  Railway  Company  prior  to  the 
enactment  of  said  ordinance,  and  at  the  time  of  the  com- 
mitting of  the  grievances  herein  mentioned  intersected  with 
the  street  railway  of  the  defendant  in,  along,  and  upon  22nd 
Street. 

That  in  and  by  a  certain  other  ordinance,  duly  ordained 
and  enacted  by  the  city  council  of  the  city  of  Chicago,  it 
is  provided  that  the  rate  of  fare  shall  be  five  (5)  cents  per 
passenger,  and  that  transfers  from  the  cars  of  the  defendant 
operating  on  22nd  Street  should  be  made  to  cars  of  the  de- 
fendant operating  on  Wabash  Avenue,  and  vice  versa. 

Plaintiff  further  avers  that  it  was  then  and  there  the  duty 
of  the  defendant  to  issue  to  a  passenger  being  carried  in  one 
of  its  said  Wabash  Avenue  cars,  who  desired  to  change  or 
transfer  from  said  Wabash  Avenue  car  to  one  of  the  22nd 
Street  cars  of  the  defendant  at  said  intersection,  and  who 
paid  the  regular  and  lawful  fare  and  reward  of  five  (5)  cents 
to  the  conductor  on  said  Wabash  Avenue  car,  a  certain  ticket, 
commonly  known  as,  to-wit,  a  transfer  or  transfer  ticket,  in 
and  by  which  said  transfer  or  transfer  ticket,  said  passenger 
was  entitled  to  be  carried  in  the  cars  of  the  defendant  upon 
and  over  the  street  railway  of  the  defendant  in,  upon  and 
along  said  22nd  Street,  without  the  payment  of  any  other 
or  additional  fare  or  reward  whatever. 

And  the  said  defendant  being  a  common  carrier,  as  afore- 
said, thereupon,  heretofore,  to-wit,  on  the  4th  day  of  June, 
1909,  at  the  city  of  Chicago,  aforesaid,  the  plaintiff,  at  the 
special  instance  and  request  of  said  defendant,  became  and 

52 


HOW  TO  DO  LAW  OFFICE  STENOGRAPHY 

was  a  passenger  in  a  certain  car  of  the  defendant,  which  was 
then  and  there  being  propelled  in  a  southerly  direction  on 
said  Wabash  Avenue,  to  be  safely  carried  and  conveyed  in 
and  by  said  car  on  a  certain  journey,  to-wit,  to  the  said  inter- 
section of  Wabash  Avenue  and  22nd  Street,  and  then  in  and 
by  another  car  of  the  defendant  in  a  westerly  direction  upon 
and  over  the  said  railway  of  the  defendant  in,  upon,  and 
along  said  22nd  Street.  That  upon  becoming  a  passenger  on 
said  Wabash  Avenue  car,  as  aforesaid,  the  plaintiff  then  and 
there  paid  to  the  conductor  of  said  Wabash  Avenue  car,  who 
was  a  servant  of  the  defendant,  the  regular  fare  and  reward 
of  five  (5)  cents,  which  fare  and  reward  was  received  by  said 
conductor;  that  at  the  time  and  place  aforesaid,  the  said 
plaintiff  requested  the  said  conductor  to  issue  or  give  to 
plaintiff  one  of  the  transfers  or  transfer  tickets  aforesaid,  to 
enable  the  plaintiff  to  be  carried  in  a  westerly  direction  over 
the  street  railway  of  the  defendant,  in,  upon,  and  along  said 
22nd  Street,  from  the  said  intersection  of  Wabash  Avenue  and 
22nd  Street,  and  then  and  there  the  said  conductor  issued  or 
gave  to  the  plaintiff  one  of  said  transfers  or  transfer  tickets ; 
that  upon  arriving  at  the  intersection  of  said  Wabash  Avenue 
and  22nd  Street  in  the  said  Wabash  Avenue  car,  in  which  he 
had  been  theretofore  carried  on  said  Wabash  Avenue,  and 
then  and  there,  within  one  hour  after  said  transfer  or  transfer 
ticket  was  given  or  issued  to  the  plaintiff,  as  aforesaid,  the 
plaintiff  entered  into  and  became  a  passenger  in  a  certain  car 
of  the  defendant,  which  was  then  and  there  used  and  operated 
by  the  said  defendant  for  the  carrying  of  passengers  in  a 
westerly  direction  from  said  intersection  of  Wabash  Avenue 
and  22nd  Street,  upon  and  over  said  street  railway,  upon  and 
along  said  22nd  Street,  and  then  and  there  the  conductor  of 
said  car,  being  one  of  the  servants  of  the  defendant,  came  to 
the  plaintiff  and  demanded  of  the  plaintiff  a  fare  or  reward 
for  the  carriage  of  said  plaintiff  in  said  22nd  Street  car;  that 
then  and  there  the  plaintiff  tendered  and  offered  to  surrender 
and  pay  to  the  said  conductor  of  said  22nd  Street  car  the 
identical  transfer  or  transfer  ticket  issued  or  given  to  the 
plaintiff,  as  aforesaid,  by  the  said  conductor  of  the  defendant 
on  said  Wabash  Avenue  car,  which  said  transfer  ticket  the 
said  conductor  of  said  22nd  Street  car  refused  to  accept  in 
payment  of  the  fare  or  reward  for  the  carriage  of  the  said 

53 


HOW  TO  DO  LAW  OFFICE  STENOGRAPHY 

plaintiff  in  said  22nd  Street  car,  and  then  ami  there  demanded 
that  the  plaintiff  pay  to  the  defendant  a  fare  or  reward  in 
money ;  that  the  plaintiff  then  and  there  explained  to  said  con- 
ductor the  circumstances  under  which  he  received  the  transfer 
or  transfer  ticket  from  the  conductor  of  the  defendant  on 
said  Wabash  Avenue  car,  and  remonstrated  with  said  con- 
ductor of  said  22nd  Street  car  against  the  requirement  or  de- 
mand of  a  fare  or  reward  in  money ;  that  thereupon  the  said 
conductor  with  force  and  arms  assaulted  the  plaintiff  and 
then  and  there  wilfully,  wantonly  and  maliciously,  and  with 
excessive  and  unreasonable  force  and  violence,  pulled,  thrust, 
shoved  and  dragged  the  plaintiff  through  and  out  of  the  de- 
fendant's car,  which  was  then  and  there  filled  with  divers 
people  and  strangers  to  the  plaintiff,  and  did  then  and  there, 
in  the  presence  of  many  people,  wilfully,  maliciously  and 
wantonly,  with  great,  unnecessary  and  excessive  force  and 
violence,  expel,  thrust  and  eject  the  plaintiff  from  the  said 
car,  and  thereby  did  throw  him  and  cause  him  to  be  thrown 
with  great  force  and  violence  down  to  and  upon  the  ground. 
By  means  whereof,  the  head,  body  and  limbs  of  the  plaintiff 
were  seriously  injured,  and  the  bones  thereof  became  and 
were  fractured  and  broken,  ?,nd  the  said  plaintiff  was  other- 
wise greatly  bruised,  wounded  and  injured;  and  also  by 
means  of  the  premises,  the  said  plaintiff  became  and  was  sick, 
sore,  lame  and  disordered,  and  so  remained  and  continued  for 
a  long  space  of  time,  to-wit,  from  thence  hitherto,  the  plaintiff 
suffered  and  underwent  great  pain,  and  the  said  plaintiff's 
life  was  despaired  of,  and  the  said  plaintiff  was  hindered  and 
prevented  from  transacting  and  attending  to  his  necessary  and 
lawful  affairs  by  him  during  all  that  time  to  be  performed  and 
transacted,  and  lost  and  was  deprived  of  divers  great  gains, 
profits  and  advantages  and  charges  which  he  might  and  other- 
wise would  have  derived  and  acquired,  and  especially  said 
plaintiff  was  hindered  and  prevented  from  transacting,  pur- 
suing and  carrying  on  his  business  as  a  jeweler,  during  all 
that  time  to  be  transacted,  pursued,  and  carried  on,  from 
which  employment  and  business  said  plaintiff  then  and  there 
derived  a  large  income  and  great  profit,  to-wit,  an  income  and 
profit  of  Ten  Thousand  ($10,000)  Dollars  a  year,  and  was 
permanently  disabled  from  carrying  on  his  employment  and 
business  as  a  jeweler  aforesaid,  and  deprived  of  divers  great 

54 


HOW  TO  DO  LAW  OFFICE  STENOGRAPHY 

gains,  profits,  income,  wages,  salary,  commissions  and  charges 
which  he  might  and  otherwise  would  have  derived  from  said 
employment  and  business;  and  thereby  also  the  said  plaintiff 
was  permanently  disabled  from  at  any  time  thereafter  resum- 
ing his  said  employment  or  business  as  a  jeweler,  or  from 
receiving  the  gains  and  profits,  income,  salary,  commissions 
and  reward  thereof,  which  he  might  and  otherwise  would  re- 
ceive, and  also  from  engaging  in  or  pursuing  any  other  busi- 
ness or  employment,  and  from  receiving  the  gains,  profits, 
and  rewards  thereof,  which  he  might  and  otherwise  would 
receive,  and  thereby  the  said  plaintiff  was  forced  and  obliged 
to  and  did  then  and  there  pay,  lay  out  and  expend  divers  large 
sums  of  money,  amounting  in  the  whole  to  Eight  Hundred 
($800.00)  Dollars,  and  became  liable  to  pay,  lay  out  and  ex- 
pend divers  other  large  sums  of  money,  amounting  in  the 
whole  to  Eight  Hundred  ($800.00)  Dollars,  in  and  about 
endeavoring  to  be  cured  of  the  said  fractures,  bruises,  wounds 
and  injuries  so  received,  as  aforesaid,  to  the  damage  of  the 
plaintiff  in  the  sum  of  Twenty-five  Thousand  ($25,000) 
Dollars,  and  therefore  he  brings  this  suit. 


Plaintiff's  Attorney. 

TEOVEE 

An  action  in  Trover  is  in  form  ex  delicto  based 
upon  the  defendant's  tort,  and  is  a  species  of  the 
action  of  trespass  on  the  case.  The  object  is  to  re- 
cover damages  against  one  who  has,  without  right, 
converted  to  his  own  use  personal  chattels  in  which 
the  plaintiff  has  a  general  or  special  property. 

On  the  next  following  page  is  given  a  form  of  the 
declaration  in  an  action  of  Trover  in  the  State  of  Illi- 
nois for  loss  of  goods  by  a  railroad  company,  a  common 
carrier : 


55 


HOW  TO  DO  LAW  OFFICE  STENOGRAPHY 

State  of  Illinois,        ) 

ss 
Sangamon  County,  ) 

In  the  Circuit  Court  of  Sangamon  County. 

John  C.  Dawson,  ) 

Plaintiff,   ) 

) 
vs.  ) 

) 

Baltimore  &  Ohio  Railroad        ) 

Company,  ) 

Defendant.  ) 

For  that  whereas,  the  said  defendant  before  and  at  the  time 
of  the  delivery  to  it  of  the  goods  and  chattels  hereinafter  men- 
tioned, was  and  from  thence  hitherto  hath  been  and  still  is  a 
common  carrier  of  goods  and  chattels  for  hire;  and  whereas 
also  the  said  plaintiff,  whilst  the  said  defendant  was  common 
carrier  as  aforesaid,  to-wit,  on  the  12th  day  of  June,  1908,  at 
the  city  of  Springfield,  in  the  state  of  Illinois,  to-wit,  at  the 
aforesaid  city  of  Springfield,  caused  to  be  delivered  to  said 
defendant,  and  the  said  defendant  then  and  there  accepted 
and  received  of  and  from  the  said  plaintiff  certain  goods  and 
chattels,  to-wit,  of  great  value,  to-wit,  of  the  value  of  Nine 
Hundred  ($900.00)  Dollars,  to  be  safely  carried  and  securely 
conveyed  by  the  said  defendant  from  Springfield,  aforesaid, 
to  the  city  of  Boston,  in  the  state  of  Massachusetts,  and  there 
safely  and  securely  to  be  delivered  for  the  said  plaintiff  for. 
certain  and  reasonable  reward  to  the  said  defendant  in  that 
behalf ;  yet  the  said  defendant,  not  regarding  its  duty  as  such 
common  carrier  as  aforesaid,  but  contriving  and  fraudulently 
intending  craftily  and  subtly  to  deceive,  defraud  and  injure 
the  said  plaintiff  in  this  behalf,  did  not  nor  would  safely  or 
securely  carry  or  convey  the  goods  and  chattels  last  aforesaid 
from  Springfield,  aforesaid,  to  the  city  of  Boston,  aforesaid, 
nor  there  safely  or  securely  deliver  the  same  for  the  said 
plaintiff;  but  on  the  contrary,  the  said  defendant  so  being 
such  common  carrier  as  aforesaid,  so  carelessly  and  negligently 
behaved  and  conducted  itself  in  the  premises  that  by  and 
through  the  carelessness,  negligence  and  default  of  said  de- 
fendant in  the  premises,  the  goods  and  chattels  last  aforesaid, 

56 


HOW  TO  DO  LAW  OFFICE  STENOGRAPHY 

being  of  the  value  last  aforesaid,  have  not  been  delivered  to 
or  for  the  said  plaintiff  at  said  city  of  Boston  or  elsewhere, 
and  afterwards,  to-wit,  on  the  day  and  year  last  aforesaid, 
at  the  aforesaid  city  of  Boston,  became  and  were  wholly  lost 
to  the  said  plaintiff,  to-wit,  at  the  city  of  Boston,  aforesaid. 

And  whereas,  also,  afterwards,  to-wit,  on  said  12th  day  of 
June,  1908,  at  the  city  of  Springfield,  aforesaid,  the  said  de- 
fendant at  its  special  instance  and  request  had  the  care  and 
custody  of  plaintiff's  certain  other  goods  and  chattels  of  like 
number,  quantity,  quality,  description  and  value  as  those  in 
said  first  count  mentioned.  Yet,  the  said  defendant,  not  re- 
garding its  duty  in  that  behalf  did  not  nor  would,  while  it  so 
had  the  care  and  custody  of  the  said  last  mentioned  goods 
and  chattels  take  due  and  proper  care  of  the  same  nor  any 
part  thereof,  but  wholly  neglected  so  to  do,  and  took  such  bad 
care  thereof,  that  afterwards,  to-wit,  on  the  day  and  year 
aforesaid,  the  last  mentioned  goods  and  chattels  became  and 
were  wholly  lost  to  the  said  plaintiff,  to-wit,  at  the  city  of 
Boston,  aforesaid. 

Wherefore,  the  said  plaintiff  saith  that  he  is  injured  and 
hath  sustained  damage  to  the  amount  of  Nine  Hundred 
($900.00)  Dollars,  and  therefore  brings  his  suit,  etc.  . 


Plaintiff's  Attorney. 


57 


HOW  TO  DO  LAW  OFFICE  STENOGRAPHY 


EQUITY  PLEADINGS 

In  chancery  practise,  the  pleadings  consist  of  the 
making  of  the  formal  written  allegations  or  statements 
of  the  respective  parties  on  the  record  to  maintain  the 
writ,  or  to  defeat  it,  of  which,  when  contested  in 
matters  of  fact,  they  propose  to  offer  proofs,  and 
in  matters  of  law  to  offer  arguments  to  the  court. 
While  the  substantial  object  of  pleading  is  the  same, 
the  forms  and  rules  of  pleading  in  law  and  in  equity 
are  very  different. 

The  pleadings  in  equity  are  less  formal  than  those 
at  common  law.  The  parts  of  the  pleadings  are,  the 
bill  of  complaint,  which  contains  the  complainant's 
statement  of  the  case;  the  demurrer,  by  which  the 
defendant  demands  judgment  of  the  court  whether 
he  shall  be  compelled  to  answer  the  bill  or  not;  the 
plea,  whereby  he  shows  some  cause  why  the  suit 
should  be  dismissed  or  barred;  the  answer,  which, 
controverting  the  case  stated  by  the  bill,  submits  to 
the  judgment  of  the  court  upon  it,  or  relies  upon  a 
new  case  or  upon  new  matter  stated  in  the  answer,  or 
upon  both. 

As  the  pleadings  are  less  formal  than  those  in  com- 
mon law,  there  is  given  in  this  book  a  complete  case 
from  its  beginning  until  its  appeal  to  the  reviewing 
court,  including  the  briefs  filed  by  the  appellant  and 
the  appellee.  The  shorthand  notes  for  those  pleadings 
are  printed  opposite  them.  The  case  is  that  of  Mary 
A.  Gross,  administratrix  of  the  estate  of  James  L. 
Gross,  deceased,  against  the  Union  Trust  &  Savings 

58 


HOW  TO  DO  LAW  OFFICE   STENOGRAPHY 

Bank,  a  corporation,  and  the  Second  National  Bank, 
a  corporation. 

The  title  of  the  case  shows  that  Mary  A.  Gross  is  ad- 
ministratrix of  the  estate  of  James  L.  Gross,  deceased. 
Now,  what  does  "administratrix"  mean! 

Turning  to  the  Standard  Dictionary  we  find  that  an 
"administrator"  is  "one  who  administers  something, 
as  the  estate  of  an  intestate."  Of  course,  administra- 
trix is  the  feminine.  "Intestate"  means  "not  having 
made  a  will"  or  "a  person  who  dies  intestate."  So, 
an  administratrix  is  a  woman  who  administers  the 
estate  of  one  who  dies  without  making  a  will. 

It  will  be  noticed  that  the  solicitor  for  the  com- 
plainant is  somewhat  more  careful  in  drafting  his 
pleadings  than  is  the  solicitor  for  the  defendant. 
When  an  amount  of  money  is  stated  in  the  pleadings 
it  is  not  only  spelled  out,  but  is  also  represented  in 
figures  in  parentheses;  so,  too,  are  the  figures  repre- 
senting the  number  of  the  lots  .and  the  block  in  the 
description  of  the  property.  This  is  done  for  greater 
certainty.  It  will  also  be  noted  that  when  an  amount 
of  money  is  stated  and  thus  represented,  the  figures 
are  placed  with  the  dollar  mark  in  the  parentheses 
immediately  before  the  word  "dollars."  One  reason 
for  this  is  that  in  blank  forms  for  conveyancing,  etc., 
the  word  "dollars"  is  printed,  and  if  in  filling  in  the 
forms  the  amount  of  money  is  spelled  out  and  then'  re- 
peated in  numerals  in  parentheses,  it  must  be  repeat- 
ed before  the  word  "dollars,"  which  is  in  the  printed 
form. 

The  attorney  for  the  defendant  is  not  so  particular. 
In  some  instances  in  the  answer,  the  same  method  is 

59 


employed,  while  in  others  it  is  not.  The  stenographer 
writing  the  answer  is  probably  to  blame  for  not  being 
consistent  in  this  regard.  While  there  is  no  absolute 
necessity  for  the  repetition,  attorneys  feel  that  they 
should  be  as  certain  as  possible,  and  in  most  instances 
the  figures  are  repeated  in  parentheses.  "When  they 
are  repeated,  it  will  be  noted  that  I  show  the  repetition 
by  throwing  a  circle  around  the  figures  or  other  matter 
to  be  repeated,  which  indicates  to  me  that  the  attorney 
has  dictated  a  repetition  of  those  figures. 

The  first  pleading  encountered  will  be  a  bill  of  com- 
plaint in  equity.  Why  was  not  this  action  brought  at 
law?  Because  there  are  no  known  forms  in  common 
law  which  would  give  adequate  relief.  An  accounting 
is  asked  for.  No  action  at  law  provides  for  an  account- 
ing. The  complainant  asks  that  the  defendants  may  be 
restrained  and  enjoined  from  selling,  negotiating,  or 
in  any  manner  disposing  of  a  note  made  by  Harry  L. 
Brown.  This  must  be  done  by  an  injunction  issued  by 
a  court  in  equity.  An  injunction  is  also  asked  against 
the  defendants  restraining  and  enjoining  them  from 
selling  or  attempting  to  sell  the  property  in  question. 
There  being  no  adequate  remedy  at  law  the  case  must 
have  been  brought  in  equity.  Referring  to  Lesson 
Twenty-one  of  the  Rose  Expert  Shorthand  Course, 
attention  is  called  to  the  chapter  on  Equity  Pleadings, 
beginning  at  Page  3,  and  you  are  asked  to  carefully 
read  Pages  3  and  4,  descriptive  of  a  bill  of  complaint. 

In  this  instance  the  complaint  is  ' '  verified. ' '  In  other 
words,  the  complainant  makes  an  affidavit  that  she  has 
read  the  bill  of  complaint  and  that  it  is  true,  except  as 
to  matters  stated  on  information  and  belief,  and  as  to 

60 


HOW  TO  DO  LAW  OFFICE   STENOGRAPHY 

those  matters  she  believes  it  to  be  true.  The  verifica- 
tion given  to  this  bill  of  complaint  prevails  in  nearly 
every  state,  and  if  after  receiving  a  bill  of  complaint 
from  dictation,  the  attorney  tells  you  to  add  a  verifica- 
tion, you  should  be  able  to  do  so.  If  the  verification  is 
absolute  and  not  on  "information  and  belief,"  the  last 
clause  reading  "and  those  stated  on  information  and 
belief  she  believes  to  be  true"  should  be  omitted.  If, 
however,  it  is  a  verification  on  '-information  and  be- 
lief, ' '  the  form  given  herewith  is  the  correct  one. 

As  stated,  a  verification  is  an  affidavit.  What  is  an 
affidavit!  The  Standard  Dictionary  gives  the  defini- 
tion "a  voluntary  sworn  declaration  in  writing,  made 
before  a  competent  authority."  In  this  case  it  is  made 
before  a  notary  public,  who  has  authority  to  administer 
oaths,  etc. 

As  stated  in  the  lessons,  the  part  reading  ' '  Subscrib- 
ed and  sworn  to  before  me  this  26th  day  of  September, 
1915,"  is  the  jurat.  The  definition  of  "jurat,"  given 
by  the  same  authority,  is  ' '  the  clause  in  an  official  cer- 
tificate testifying  that  the  deposition  has  been  duly 
sworn  to  by  a  competent  authority."  Seldom,  indeed, 
will  the  attorney  dictate  the  jurat,  but  will  simply  say 
"jurat  of  this  date."  This  the  stenographer  should  add. 

The  bill  of  complaint,  together  with  the  shorthand 
notes  thereof,  begin  on  the  next  page. 


61 


HOW  TO  DO  LAW  OFFICE   STENOGRAPHY 

In  the  Supreme  Court  of  the  District  of  Columbia. 

Mary  A.  Gross,  Administratrix  of  the  ) 
Estate  of  James  L.  Gross,  deceased,  ) 

Complainant,  ) 

) 
vs.  )     BILL  OF 

)     COMPLAINT 

Union  Trust  &  Savings  Bank,  a  Corpora-  ) 
tion,  and  Second  National  Bank,  a  Cor-  ) 
poration,  ) 

Defendants.  ) 

The  original  bill  of  complaint  of  the  complainant,  Mary  A. 
Gross,  Administratrix  of  the  Estate  of  James  L.  Gross,  de- 
ceased, respectfully  shows  to  the  court  as  follows : 

1.  That  she  is  a  citizen  of  the  United  States  and  a  resident 
of  Prince  Georges  county,  in  the  state  of  Maryland,  and  is 
of  full  age ;  that  she  is  the  duly  appointed  and  qualified  ad- 
ministratrix of  the  estate  of  James  L.  Gross,  deceased,  having 
been  thereunto  appointed  and  qualified  by  and  before  the 
Orphans'  Court  for  Prince  Georges  county,  in  the  state  of 
Maryland,  and  brings  this  suit  as  said  duly  appointed  and 
qualified   administratrix   of  the   estate   of  James  L.    Gross, 
deceased. 

2.  That  the  defendant,  the  Union  Trust  &  Savings  Bank,  is 
a  corporation,  incorporated  under  the  laws  of  and  doing  a 
general  banking  business  in  the  District  of  Columbia,  and  is 
sued  in  its  own  right  as  hereinafter  set  forth ;  that  the  defend- 
ant, the  Second  National  Bank,  is  a  corporation,  incorporated 
in  a  place  unknown  to  this  complainant,  for  conducting  a  gen- 
eral banking  business,  but  is  not  now  so  engaged  in  the  Dis- 
trict of  Columbia,  and  is  sued  in  its  own  right  as  hereinafter 
set  forth. 

3.  That  on,  to-wit,  the  eleventh  day  of  August,  1909,  James 
L.  Gross,  the  husband  of  the  complainant,  departed  this  life, 
intestate,  owning  and  leaving  among  other  property  a  note  of 
Harry  L.  Brown  for  six  hundred  and  ninety-five   ($695.00) 
doll'ars,  dated  the  twenty-second  day  of  March,  1909,  payable 
five  (5)  years  after  date  with  interest  at  the  rate  of  six  per 
centum  (6%),  payable  semi-anmially,  well  secured  by  mort- 
gage on  Lots  One  (1),  Two  (2),  and  Three   (3),  Block  Six 

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HOW  TO  DO  LAW  OFFICE   STENOGRAPHY 


(6),  West  Riverdale,  in  the  state  of  Maryland,  with  improve- 
ments thereon  consisting  of  a  dwelling  house;  that  said  note 
of  Harry  L.  Brown  had  been  deposited  by  James  L.  Gross, 
deceased,  with  the  defendant,  the  Second  National  Bank,  and 
was  held  by  said  bank  at  the  date  of  the  death  of  deceased 
as  collateral  security  for  certain  indebtedness  of  James  L. 
Gross,  deceased,  on  certain  promissory  notes,  either  as  maker 
or  endorser,  owned  and  held  by  the  defendant,  the  Second 
National  Bank,  which  at  the  time  of  his  death,  as  near  as  the 
complainant  has  been  able  to  ascertain,  were  as  follows :  note 
for  eighty  ($80.00)  dollars,  of  Robert  Corwin,  endorsed  by 
James  L.  Gross,  due  the  twenty-eighth  day  of  September, 
1909;  note  for  sixty  ($60.00)  dollars,  of  Mary  A.  Gross. 
endorsed  by  James  L.  Gross,  due  the  fifteenth  day  of  August, 
1909;  note  for  fifty-five  ($55.00)  dollars  of  Mary  A.  Gross, 
endorsed  by  James  L.  Gross,  due  the  fifteenth  day  of  August, 
1909;  note  for  seventy-five  ($75.00)  dollars  of  Robert  Cor- 
win, endorsed  by  James  L.  Gross,  due  September  28th,  1909 ; 
note  for  two  hundred  and  one  ($201.00)  dollars  of  James 
L.  Gross,  endorsed  by  N.  E.  Paton,  due  September  28th,  1909 ; 
making  a  total  indebtedness  of,  to-wit,  four  hundred  and 
seventy-one  ($471.00)  dollars,  for  which  the  estate  of  James 
L.  Gross  was  liable  to  the  defendant,  the  Second  National 
Bank ;  that  shortly  after  the  death  of  James  L.  Gross,  the  note 
of  Robert  Corwin  on  which  James  L.  Gross,  deceased,  was 
endorser,  for  eighty  ($80.00)  dollars  was  taken  up  and  paid 
by  said  Robert  Corwin ;  that  shortly  after  the  death  of  James 
L.  Gross,  the  aforesaid  note  of  Mary  A.  Gross,  on  which  James 
L.  Gross  was  endorser,  amounting  to  sixty  ($60.00)  dollars, 
was  on,  to-wit,  the  fifteenth  day  of  August,  1909,  paid  by  Mary 
A.  Gross ;  that  shortly  after  the  death  of  James  L.  Gross,  the 
aforesaid  note  of  Mary  A.  Gross,  on  which  James  L.  Gross  was 
endorser,  amounting  to  fifty-five  ($55.00)  dollars,  was  taken 
up  on,  to-wit,  the  sixteenth  day  of  August,  1909,  by  Mary  A. 
Gross  giving  a  new  note  made  by  her  payable  to  the  order  of 


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HOW  TO  DO  LAW  OFFICE  STENOGRAPHY 


John  Carleton;  that  this  last  mentioned  note  was  taken  up 
and  paid  by  Mary  A.  Gross,  through  her  attorney,  on,  to-wit, 
the  twenty-seventh  day  of  October,  1909,  in  the  following  man- 
ner, that  is,  with  the  check  of  Harry  L.  Brown  for  twenty- 
($20.00)  dollars,  being  the  semi-annual  interest  to  the  twenty- 
second  day  of  September,  1909,  paid  by  him  on  his  said  note 
of  six  hundred  and  ninety-five  ($695.00)  dollars,  directly 
to  Mary  A.  Gross,  administratrix,  and  with  the  check  of  Mary 
A.  Gross  for  thirty-seven  ($37.00)  dollars,  making  a  total 
of  fifty-seven  ($57.00)  dollars,  paid  to  cover  principal,  in- 
terest, and  protest  fee ;  that  at  the  time  of  the  payment  of  said 
last  mentioned  note,  it  was  expressly  understood  and  agreed 
between  the  defendant,  the  Second  National  Bank,  and  the 
complainant,  that  the  defendant,  the  Second  National  Bank, 
would  hold  and  collect  the  interest  and  principal  of  the  note 
of  Harry  L.  Brown  and  credit  the  same  on  the  indebtedness 
of  the  estate  of  James  L.  Gross  to  the  Second  National  Bank, 
until  all  of  the  said  indebtedness  of  James  L.  Gross  to  said 
bank  was  paid,  and  that  the  balance  of  the  proceeds  from  the 
note  of  Harry  L.  Brown  would  thereupon  be  turned  over  and 
delivered  to  the  complainant  as  administratrix  of  the  estate 
of  James  L.  Gross,  deceased;  that  the  complainant  relied 
upon  said  understanding  and  agreement  with  the  defendant, 
the  Second  National  Bank,  and  allowed  said  note  of  Harry  L. 
Brown  to  remain  in  the  possession  of  the  defendant,  the  Sec- 
ond National  Bank,  for  collection  of  interest  (which  was 
always  promptly  paid),  and  the  principal,  the  same  to  be 
credited  upon  the  indebtedness  of  James  L.  Gross  to  said  de- 
fendant until  said  indebtedness  was  paid  in  full,  and  the 
balance  to  be  paid  to  this  complainant  as  administratrix. 

4.  That  on,  to-wit,  the  twenty-fourth  day  of  May,  1911,  the 
complainant,  through  her  attorney,  addressed  a  letter  to  the 
defendant,  the  Second  National  Bank,  requesting  a  statement 
from  said  defendant  as  to  the  balance  then  due  and  for  a 
description  of  the  Brown  note,  a  copy  of  said  letter,  dated  the 
twenty-fourth  day  of  May,  1911,  is  hereto  attached,  marked 
"Exhibit  A,"  and  prayed  to  be  read  and  taken  as  a  part 
hereof;  that  in  reply  thereto  the  complainant,  through  her 
attorney,  received  a  letter  from  the  defendant,  the  Second 

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HOW  TO  DO  LAW  OFFICE  STENOGRAPHY 

National  Bank,  dated  the  twenty-sixth  day  of  May,  1911, 
stating  that  the  indebtedness  of  James  L.  Gross  to  said  de1- 
fendant  on  that  date  was  two  hundred  and  forty-four 
($244.00)  dollars,  and  stating  that  said  defendant  still  held 
as  collateral  security  for  said  indebtedness  the  note  of  Harry 
L.  Brown  for  six  hundred  and  ninety-five  ($695.00)  dollars, 
said  note  being  dated  the  twenty-second  day  of  March,  1909, 
for  five  years,  with  interest  at  six  per  cent,  per  annum,  pay- 
able semi-annually,  with  interest  paid  thereon  until  the 
twenty-second  day  of  March,  1911;  that  the  said  letter  was 
written  and  signed  by  W.  T.  Phillips,  then  cashier  of  the  Sec- 
ond National  Bank,  and  a  copy  of  said  letter,  dated  the 
twenty-sixth  day  of  May,  1911,  is  hereto  annexed,  marked 
"  Exhibit  B,"  and  prayed  to  be  taken  and  read  as  a  part 
hereof. 

5.  That  on,  to-wit,  the  twelfth  day  of  August,  1912,  the  de- 
fendant, the   Second    National    Bank,    consolidated,    amal- 
gamated, or  merged  with,  or    was    taken    over  by,  the  de- 
fendant, the  Union  Trust  &  Savings  Bank,  under  terms  and 
conditions   unknown   to   this   complainant,    but    this    com- 
plainant is  informed  and  believes  and  therefore  avers  that 
the  defendant,  Union  Trust  &  Savings  Bank,  took  over  all  of 
the  assets  and  contracts  of  the  defendant,  the  Second  National 
Bank,  subject  to  all  equities  and  claims  thereon  and  assumed 
all  of  the  liabilities  of  the  defendant,  the  Second  National 
Bank ;  that  among  other  assets  and  contracts  was  the  indebted- 
ness of  the  estate  of  James  L.  Gross,  to  defendant,  the  Second 
National  Bank,  which  was  secured  by  and  being  paid  from 
the  proceeds  of  the  note  of  Harry  L.  Brown,  belonging  to  the 
estate  of  said  James  L.  Gross,  deceased;  that  the  defendant, 
the  Union  Trust  &  Savings  Bank,  is  not  a  bona  fide  holder  or 
owner  without  notice  for  value  of  the  said  note. 

6.  That  on,  to-wit,  the  first  part  of  June,  1913,  the  attorney 
for  Harry  L.  Brown  proposed  to  the  complainant  to  pay  this 
note  in  full  if  allowed  a  reasonable  discount,  and  thereupon, 
on  the  fourteenth  day  of  June,  1913,  the  complainant,  through 
her  attorney,  wrote  to  the  defendant,  the  Union  Trust  &  Sav- 
ings Bank,  which  had  succeeded  to  the  rights  and  properties 
and  had  assumed  all  the  equities  and  .obligations  of  the  de- 
fendant, the  Second  National  Bank,  requesting  a  statement 

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HOW  TO  DO  LAW  OFFICE  STENOGRAPHY 

as  to  the  indebtedness  of  the  estate  of  James  L.  Gross  to  said 
defendant,  a  copy  of  which  said  letter  is  hereto  attached  and 
marked  ''Exhibit  C,"  and  prayed  to  be  read  and  taken  as  a 
part  hereof;  that,  much  to  the  surprise  of  the  complainant  and 
her  counsel,  the  Union  Trust  &  Savings  Bank  replied  stating 
that  it  did  not  hold  the  note  of  Harry  L.  Brown  as  collateral 
security  for  the  indebtedness  of  the  estate  of  James  L.  Gross, 
deceased,  but  that  the  said  defendant  held  said  note  as  the 
absolute  owner  thereof;  that  a  copy  of  said  letter  of  the  de- 
fendant, the  Union  Trust  &  Savings  Bank,  dated  the  seven- 
teenth day  of  June,  1913,  and  signed  by  W.  T.  Phillips,  man- 
ager of  the  branch  of  the  defendant,  the  Union  Trust  &  Sav- 
ings Bank,  situated  at  Fourteenth  Street  and  U  Street,  North- 
west, which  was  the  former  location  of  the  defendant,  the 
Second  National  Bank,  is  hereto  annexed  and  marked  "Ex- 
hibit D,"  and  prayed  to  be  read  and  taken  as  a  part  hereof; 
that  the  writer  of  this  last  mentioned  letter  is  manager  of  the 
branch  of  the  Union  Trust  &  Savings  Bank,  situated  at  Four- 
teenth Street  and  U  Street,  Northwest,  and  is  the  same  person 
as  the  writer  of  the  letter  dated  the  twenty-sixth  day  of  May, 
1911,  being  then  the  cashier  of  the  Second  National  Bank; 
that  said  letter  of  the  seventeenth  day  of  June,  1913,  was  the 
first  notice  of  any  kind  whatsoever  that  was  received  by  this 
complainant  or  her  attorney  that  either  or  both  of  the  de- 
fendants claimed  title  to  or  to  be  the  owner  of  said  note  of 
Harry  L.  Brown. 

7.  That  thereupon  there  was  an  exchange  of  corre- 
spondence between  the  attorney  for  the  defendant,  the  Union 
Trust  &  Savings  Bank,  and  the  attorney  for  the  complainant, 
and  finally,  on  the  nineteenth  day  of  July,  1913,  the  attorney 
for  this  complainant  addressed  a  letter  to  Charles  0.  Murray, 
President  of  the  Union  Trust  &  Savings  Bank,  giving  the 
facts  in  the  case  and  calling  upon  him  for  an  honest  and  just 
settlement  of  the  matter,  a  copy  of  which  letter,  dated  the 
nineteenth  day  of  July,  1913,  is  hereto  annexed,  marked  "Ex- 
hibit E,"  and  prayed  to  be  taken  as  a  part  hereof;  but  the  de- 
fendant, the  Union  Trust  &  Savings  Bank,  unjustly  and 
wrongfully,  and  to  the  damage  and  loss  of  this  complainant, 
set  up  a  claim  of  title  and  ownership  to  said  promissory  note 


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HOW  TO  DO  LAW  OFFICE  STENOGRAPHY 


of  Harry  L.  Brown,  and  refused  to  account  therefor  or  for 
the  proceeds  therefrom  to  this  complainant,  as  will  appear 
by  the  letter  signed  by  defendant's  president,  Charles  O.  Mur- 
ray, dated  the  thirty-first  day  of  July,  1913,  a  copy  of  which 
letter  is  hereto  annexed,  marked  "Exhibit  F,"  and  prayed 
to  be  read  and  taken  as  a  part  hereof;  that  this  complainant 
alleges  that  it  was  expressly  understood  and  agreed  between 
the  defendant,  Second  National  Bank,  and  this  complainant 
that  the  note  of  Harry  L.  Brown  should  not  be  sold  by  said 
defendant,  and  that  no  notice  whatever,  either  verbal  or 
written,  was  given  by  the  defendant,  the  Second  National 
Bank,  nor  by  the  defendant,  the  Union  Trust  &  Savings  Bank, 
of  any  alleged  sale  of  said  note  of  Harry  L.  Brown,  and  this 
complainant  is  informed  and  believes  and  therefore  avers 
that  no  bona  fide  sale  or  offer  of  sale  of  said  note  of  Harry  L. 
Brown  was  ever  had  or  ever  occurred. 

8.  That  thereafter  on,  to-wit,  the  twenty-first  day  of  Sep- 
tember, 1913,  Harry  L.  Brown,  through  his  attorney,  paid  said 
note  for  six  hundred  and  ninety-five    ($695.00)    dollars  to 
this  complainant,  with  the  reduction  of  five  per  cent,  discount 
thereon  allowed  by  this  complainant  for  cash  payment  thereof, 
and  paid  the  interest  thereon  until  the  twenty-second  day  of 
September,  1913,  thus  settling  and  paying  in  full  his  indebted- 
ness to  the  estate  of  James  L.  Gross,  deceased,  and  requested 
the  delivery  of  his  note    for    six    hundred  and  ninety-five 
($695.00)  dollars,  which  he  had  paid. 

9.  That  thereafter  on,  to-wit,  the  twenty-sixth  day  of  Sep- 
tember, 1913,  this  complainant,  through  her  attorney,  visited 
the  branch  bank  of  the  Union  Trust  &  Savings  Bank  at  Four- 
teenth and  U  Streets,  Northwest,  and  then  and  there  made 
tender  of  the    sum    of,  to-wit,  two    hundred  and  forty-five 
($245.00)  dollars  in  gold,  or  such  part  or  balance  as  might 
still  be  due  and  owing  from  the  estate  of  James  L.  Gross,  de- 
ceased, to  the  defendant,  the  Union  Trust  &  Savings  Bank,  as 
the  successor  or  representative    of    the  defendant,   Second 
National  Bank,  said  tender  being  made  to  W.  T.  Phillips, 
manager  of  the  Fourteenth  Street  branch  of  the  defendant, 
the  Union  Trust  &  Savings  Bank,  but  that  said  tender  and 


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HOW  TO  DO  LAW  OFFICE  STENOGRAPHY 

said  money,  or  the  proper  balance  due  it,  was  on  said  date 
then  and  there  refused  by  the  defendant,  the  Union  Trust  & 
Savings  Bank ;  that  thereupon  and  at  the  same  time  this  com- 
plainant, through  her  attorney,  fearing  that  said  defendant 
might  attempt  to  negotiate  said  note,  likewise  demanded  the 
delivery  and  possession  of  said  note  of  Harry  L.  Brown  for 
six  hundred  and  ninety-five  ($695.00)  dollars,  wrongfully 
and  unlawfully  held  by  the  defendant,  Union  Trust  &  Sav- 
ings Bank,  from  this  complainant,  but  that  said  defendant, 
Union  Trust  &  Savings  Bank,  failed  and  refused  and  still 
fails  and  refuses  to  deliver  said  note  to  this  complainant, 
without  any  just  cause  and  excuse,  and  threatens  to  proceed 
and  is  about  to  proceed,  against  the  maker  of  said  note,  Harry 
L.  Brown,  by  sale  of  his  aforesaid  real-estate,  situated  in  West 
Kiverdale,  Maryland,  on  which  said  note  of  six  hundred  and 
ninety-five  ($695.00)  dollars,  was  and  has  been  secured  by 
mortgage,  all  against  the  objection  and  protest  of  this  com- 
plainant ;  that  this  complainant  is  without  adequate  and  com- 
plete remedy  at  law  and  accordingly  brings  this  her  bill  in 
equity,  where  such  matters  are  properly  cognizable  and  where 
full  and  complete  justice  and  equity  may  be  had  in  the 
premises. 

Wherefore,  the  premises  considered,  this  complainant  prays : 

1.  That  a  writ  of  subpoena  may  be  issued  against  the  de- 
fendant, Second  National  Bank,  and  the  defendant,  Union 
Trust  &  Savings  Bank,  and  upon  each  of  them,  commanding 
them  and  each  of  them  to  appear  and  be  made  party  de- 
fendants hereto  and  answer  the  exigencies  of  this  bill  of  com- 
plaint. 

2.  That  the  defendant,  Union  Trust  &  Savings  Bank,  may 
be  ordered  and  directed  forthwith  to  surrender  and  to  de- 
liver to  the  complainant  the  note  of  Harry  L.  Brown,  for  Six 
hundred  and  ninety-five  ($695.00)  dollars,  dated  the  twenty- 
second  day  of  March,  1909,  payable  five  years  after  date,  on 
payment  by  complainant  of  the  balance  of  the  indebtedness, 
if  any,  that  may  still  be  due  from  the  estate  of  James  L.  Gross 
to  the  said  defendant. 

3.  That  the  defendant,  Second  National  Bank,  and  the  de- 
fendant, Union  Trust  &  Savings  Bank,  may  each  and  both 
be  ordered  and  directed  to  account  to  this  complainant  for 
the  note  of  Harry  L.  Brown  for  six  hundred  and  ninety- 
five  ($695.00)  dollars  and  the  interest  received  thereon  and  to 
account  in  regard  to  the  credits  entered  on  the  indebtedness 

74 


\ 


HOW  TO  DO  LAW  OFFICE  STENOGRAPHY 

of  the  estate  of  James  L.  Gross,  deceased,  to  either  or  both  of 
said  defendants,  and  the  balance,  if  any,  still  remaining  due 
thereon. 

4.  That  the  defendants,  the  Union  Trust  &  Savings  Bank, 
and  the  Second  National  Bank,  may  be  restrained  and  en- 
joined from  selling,  negotiating,  or  in  any  manner  disposing 
of,  the  said  note  of  Harry  L.  Brown,  for  six  hundred  and 
ninety-five  ($695.00)  dollars,  dated   the   twenty-second    day 
of  March,  1909. 

5.  That  the  defendants,  the  Union  Trust  &  Savings  Bank 
and  the  Second  National  Bank,  may  each  and  both  be  re- 
strained and  enjoined  from  selling  or  attempting  to  sell  or 
from  causing  to  be  sold  the  real  estate  of  Harry  L.  Brown, 
being  lots  One  (1),  Two  (2),  and  Three  (3),  in  Block  Six 
(6),  situated  in  "West  Riverdale,  in  the  State  of  Maryland, 
under  the  mortgage  thereon,  securing  said  note  for  six  hun- 
dred and  ninety-five  ($695.00)  dollars. 

6.  That  the  defendants  and  each  of  them  may  be  required 
to  discover  and  disclose  the  terms  and  conditions  on  and  under 
which  the  defendant,  Second  National  Bank,  was  consolidated, 
amalgamated,  or  merged    with,    or    taken  over  by  the  de- 
fendant, Union  Trust  &  Savings  Bank. 

7.  That  the  complainant  may  have  such  other  and  further 
relief  in  the  premises  as  the  court  may  deem  proper  and  just. 


Administratrix  of  the  Estate  of 
James  L.  Gross,  deceased. 


Solicitor  for  the  Complainant. 
United  States  of  America,) 
District  of  Columbia,          ) 

Mary  A.  Gross,  being  on  oath  duly  sworn,  deposes  and  says 
that  she  has  read  the  foregoing  bill  of  complaint  by  her  sub- 
scribed and  knows  the  contents  thereof ;  that  the  facts  therein 
stated  of  her  own  knowledge  are  true,  and  those  stated  on 
information  and  belief  she  believes  to  be  true. 


Subscribed  and  sworn  to  before  me  this  26th  day  of  Sep- 
tember, 1913. 


Notary  Public,  District  of  Columbia. 

76 


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HOW  TO  DO  LAW  OFFICE  STENOGRAPHY 


THE  ANSWER 

The  answer  is  a  defense  in  writing  made  by  a  defend- 
ant to  the  charges  contained  in  a  bill  of  complaint  filed 
by  the  complainant  against  him  in  a  court  of  equity.  It 
must  be  full  and  perfect  to  all  the  material  allegations 
of  the  complaint,  confessing  and  avoiding,  denying  or 
traversing  all  the  material  parts. 

In  some  states  the  form  of  an  answer  consists  of : 

1.  The  title,  specifying  which  of  the  defendants  it  is 
the  answer  of,  and  the  names  of  the  complainants  in 
the  cause  in  which  it  is  filed  as  an  answer. 

2.  A  reservation,  the  defendant  reserving  all  the  ad- 
vantages which  might  be  taken  by  exception  to  the  bill 
of  complaint,  which  is  mainly  effectual  in  regard  to 
other  suits. 

3.  The  substance  of  the  answer,  according  to  the  de- 
fendant's knowledge,  remembrance,  information  and 
belief,  in  which  the  matter  of  the  bill,  with  the  inter- 
rogatories founded  thereon,  are  answered,  one  after 
the  other,  together  with  such  additional  matter  as  the 
defendant  thinks  necessary  to  bring  forward  in  his  de- 
fense, whether  for  the  purpose  of  qualifying  or  adding 
to  the  case  made  by  the  bill,  or  to  state  a  new  case  in 
his  own  behalf. 

4.  A  general  traverse  or  denial  of  all  unlawful  com- 
binations charged  in  the  bill,  and  of  all  other  matters 
therein  contained  not  expressly  answered. 

In  the  United  States  generally  the  answer  has  been 
simplified,  but  the  variations  from  the  old  practise  con- 
sist mainly  in  dividing  the  answer  into  numbered  para- 

78 


HOW  TO  DO  LAW  OFFICE  STENOGRAPHY 

graphs,  adjusting  its  general  form  to  the  bill  as  now 
drawn,  and  in  omitting  the  clause  reserving  exceptions, 
and  the  clause  denying  combination,  retaining  merely, 
to  form  an  issue  on  them,  a  general  traverse  of  all  alle- 
gations not  expressly  answered. 

In  this  case,  an  answer  was  filed  by  the  Union  Trust 
&  Savings  Bank.  It  takes  up  the  bill  of  complaint  and 
either  admits  or  denies  the  paragraphs  seriatum.  For 
instance,  paragraph  1  is  admitted  in  the  answer.  That 
part  of  paragraph  2  which  alleges  that  the  defendant  is 
a  corporation  is  admitted,  while  an  explanation  is  made 
in  regard  to  the  other  defendant,  the  Second  National 
Bank.  The  prayer  of  the  answer  requests  that  the  bill 
of  complaint  be  dismissed  with  the  costs  to  this  defend- 
ant, and  the  preliminary  injunction  dissolved.  The 
answer  is  verified  by  the  treasurer  of  the  defendant, 
Union  Trust  &  Savings  Bank.  The  verification  differs 
somewhat  from  that  which  obtains  in  the  complaint,  as 
the  affidavit  is  made  in  the  first  person.  Either  form  is 
correct. 

Do  not  pass  one  word  until  you  have  a  full  under- 
standing of  its  meaning.  It  will  be  noted  the  answer 
alleges  that  at  the  time  of  the  service  of  "process" 
Thomas  Steadman  was  not  president  of  the  Second 
National  Bank.  What  does  "process"  mean?  It  is  a 
judicial  writ  or  order — in  this  case  a  writ  of  subpoena 
commanding  the  defendants  to  appear  and  be  made 
party  defendants  to  the  suit. 

After  thoroughly  mastering  the  bill  of  complaint  in 
every  detail,  study  the  answer,  the  form  for  which  be- 
gins on  the  following  page : 


79 


HOW  TO  DO  LAW  OFFICE  STENOGRAPHY 

In  the  Supreme  Court  of  the  District  of  Columbia. 

Mary  A.  Gross,  Administratrix    of    the  ) 
Estate  of  James  L.  Gross,  deceased,  ) 

Complainant,  ) 

)    ANSWER  OF 
vs.  )    UNION  TRUST 

)    &  SAVINGS 

Union  Trust  &  Savings  Bank,  a  Corpora-  )    BANK, 
tion;  Second  National  Bank,  a  Corpora-  ) 
tion,  ) 

Defendants.  ) 

The  answer  of  the  Union  Trust  &  Savings  Bank  to  the  bill 
of  complaint  filed  herein,  respectfully  shows  to  the  court  as 
follows : 

1.  The  defendant  admits  the  averments  of  paragraph  one. 

2.  This  defendant  admits  that  it  is  a  corporation,  incor- 
porated under  the  laws  of  the  District  of  Columbia,  and  does 
a  general  banking  business  in  the  District  of  Columbia. 

Further  answering  said  paragraph,  this  defendant  says 
that  the  Second  National  Bank  was  a  corporation,  at  one  time 
conducting  a  general  banking  business  in  the  District  of 
Columbia,  but  is  not  now  so  engaged  in  the  banking  business 
and  does  not  now  exist ;  that  the  said  Second  National  Bank 
ceased  to  be  a  corporation  by  dissolution  and  surrender  of  its 
charter  on  the  twenty-ninth  day  of  January,  1913;  that 
Thomas  W.  Steadman,  upon  whom  service  of  process  in  this 
cause  was  made  as  president  of  the  Second  National  Bank, 
was  not  at  the  time  of  service  of  said  process  the  president  or 
other  officer  of  said  Second  National  Bank,  nor  did  he  have 
any  connection  therewith,  the  said  Thomas  W.  Steadman  hav- 
ing servered  his  connection  entirely  with  the  said  Second 
National  Bank  some  months  prior  to  the  dissolution  thereof, 
to-wit,  in  May,  1912,  by  expiration  of  the  term  of  office  for 
which  he  was  elected  and  the  election  of  his  successor,  and 
since  that  time  said  Thomas  "W.  Steadman  has  not  been  in  any 
way,  either  as  officer,  director,  or  stockholder,  connected  with 
said  Second  National  Bank. 

3.  Answering  paragraph  three,  this  defendant  says  that  it 
admits  that  said  James  L.  Gross  died  as  alleged  in  said  para- 
graph, intestate,  but  denies  that  at  the  date  of  the  death  of 

80 


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81 


HOW  TO  DO  LAW  OFFICE  STENOGRAPHY 


said  James  L.  Gross  he  owned  the  note  of  Harry  L.  Brown  for 
six  hundred  and  ninety-five  ($695.00)  dollars,  maturing  five 
years  from  May  22,  1909,  and  described  in  the  bill  of  com- 
plaint otherwise  than  is  herein  set  forth,  or  that  the  same 
was  well  secured;  but  this  defendant,  upon  information  and 
belief,  avers  that  at  the  date  of  the  death  of  said  James  L. 
Gross,  the  said  note  of  Harry  L.  Brown  was  secured  by  a 
second  mortgage  on  lots  one  (1),  two  (2),  and  three  (3),  in 
Block  Six  (6),  West  Kiverdale,  Maryland,  there  being  a  first 
mortgage  ahead  of  said  mortgage  securing  said  note,  amount- 
ing to  twenty-eight  hundred  ($2,800.00)  dollars,  that 
materially  reduced  the  security  of  said  note,  but  that  since 
the  death  of  said  James  L.  Gross,  to-wit,  during  the  spring  of 
1913,  and  after  the  death  of  said  Harry  L.  Brown,  the  first 
mortgage  on  said  real-estate  was  paid  from  the  insurance 
money  left  by  said  Harry  L.  Brown,  and  because  of  the  pay- 
ment and  release  of  said  first  mortgage  the  said  note  has  become 
more  valuable ;  that  the  said  note  of  Harry  L.  Brown,  prior  to 
the  death  of  said  James  L.  Gross,  to-wit,  on  May  19,  1909,  had 
been  surrendered  by  said  James  L.  Gross  to  Second  National 
Bank  as  collateral  security  for  the  indebtedness  to  said  bank 
of  two  hundred  and  sixteen  ($216.00)  dollars  and  interest, 
payable  on  demand,  a  copy  of  which  said  note  is  hereto  an- 
nexed and  marked  ' '  Exhibit  A, ' '  and  also  as  collateral  security 
for  any  other  liability  of  said  James  L.  Gross  then  due  or 
which  might  thereafter  become  due  or  which  might  thereafter 
be  contracted  by  said  James  L.  Gross  with  said  Second  Na- 
tional Bank,  and  said  collateral  note  is  prayed  to  be  read  as 
a  part  hereof,  as  though  incorporated  herein;  that  all  other 
obligations  of  the  said  James  L.  Gross  to  the  said  Second 
National  Bank  were  paid  prior  to  February  9,  1912,  except 
the  said  demand  note  for  two  hundred  and  sixteen  ($216.00) 
dollars,  which  had  been  reduced  by  payment,  to  two  hundred 


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83 


HOW  TO  DO  LAW  OFFICE  STENOGRAPHY 


dollars  and  interest,  and  a  note  of  Robert  Corwin  for  twenty- 
five  dollars  and  interest  and  protest  fees,  which  was  then  past 
due  and  reduced  to  Twenty-four  Dollars  and  interest. 

This  defendant  denies  that  on  the  twenty-seventh  day  of 
October,  1909,  or  at  any  other  time,  said  Second  National  Bank 
made  any  agreement  or  had  any  other  understanding  with  the 
complainant,  or  with  any  one  representing  the  complainant, 
that  the  said  Second  National  Bank  would  hold  and  collect  on 
the  interest  and  principal  of  the  note  of  Harry  L.  Brown,  and 
credit  the  same  on  the  indebtedness  of  the  estate  of  James  L. 
Gross  to  Second  National  Bank,  or  that  said  Second  National 
Bank  would  hold  and  collect  on  the  interest  and  principal  of 
the  note  of  Harry  L.  Brown  and  credit  the  same  on  the  in- 
debtedness of  the  estate  of  James  L.  Gross  to  said  Second 
National  Bank  until  all  of  said  James  L.  Gross'  indebtedness 
to  said  bank  had  been  paid,  or  that  the  balance  of  the  pro- 
ceeds of  the  note  of  Harry  L.  Brown  would  thereupon  be  paid 
over  and  delivered  to  the  complainant  herein,  as  adminis- 
tratrix of  the  estate  of  James  L.  Gross,  and  this  defendant 
says  that  no  such  agreement  was  made  as  alleged  by  the  com- 
plainant ;  and  this  defendant  denies  it  was  upon  such  under- 
standing and  agreement  that  the  complainant  allowed  said 
note  of  Harry  L.  Brown  to  remain  in  the  possession  of  said 
Second  National  Bank  for  collection  of  interest  and  principal 
until  said  indebtedness  was  paid  in  full,  but  says  that  said 
Harry  L.  Brown's  note  was  surrendered  to  said  Second  Na- 
tional Bank  as  collateral  security  to  the  note  of  said  James 
L.  Gross,  set  forth  herein,  and  was  held  by  said  Second  Na- 
tional Bank  under  the  terms  of  said  collateral  note  and  could 
not  have  been  obtained  without  the  payment  of  said  collateral 
note. 

4.  This  defendant  admits  the  averments  of  paragraph  four 
of  said  bill  of  complaint,  and  says  that  the  defendant,  Second 
National  Bank,  at  the  date  of  said  letter  did  hold  the  notes 
exactly  as  set  forth  in  said  letter,  but  further  answering  said 
paragraph  this  defendant  says  that  the  said  collateral  note  of 
said  James  L.  Gross  then  held  by  said  Second  National  Bank, 


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HOW  TO  DO  LAW  OFFICE  STENOGRAPH? 


a  copy  of  which,  is  hereto  annexed  and  marked  "Exhibit  A," 
and  prayed  to  be  read  as  a  part  hereof,  was  payable  on  de- 
mand and  that  subsequently  to  said  letter  of  May  26,  1911, 
to-wit,  on  or  about  March  10,  1912,  and  prior  to  the  purchase 
of  the  assets  of  said  Second  National  Bank  by  this  defendant, 
said  Second  National  Bank  demanded  payment  of  said  note, 
under  the  terms  thereof,  and  although  not  required  by  the 
terms  of  said  collateral  note  to  notify  the  complainant  of  the 
intention  of  said  Second  National  Bank  to  sell  the  said  col- 
lateral to  said  note,  unless  paid,  did  so  notify  the  complainant 
of  the  intention  of  said  bank  to  demand  payment  of  said  note 
and  that  unless  same  was  paid  the  collateral  attached  to  said 
collateral  note  would  be  sold  under  the  terms  thereof,  to  pay 
the  indebtedness  due  on  said  collateral  note  and  the  indebted- 
ness of  the  estate  of  James  L.  Gross  of  $24.75  as  hereinbefore 
set  forth,  copy  of  which  letter  is  hereto  attached  and  marked 
' '  Exhibit  B, ' '  and  prayed  to  be  read  as  a  part  hereof,  and  no 
response  having  been  received  from  said  letter  to  said  com- 
plainant and  said  collateral  note  of  $200  and  interest  and  the 
other  indebtedness  of  $24.75,  remaining  unpaid,  after  de- 
mand, said  Second  National  Bank  did  sell  said  collateral,  con- 
sisting of  the  note  of  Harry  L.  Brown,  under  the  terms  of 
said  collateral  note,  and  from  the  proceeds  of  sale  paid  said 
collateral  note  of  James  L.  Gross  with  same,  and  also  the  note 
of  $24.75.  That  the  said  Second  National  Bank  obtained  for 
said  note  of  Harry  L.  Brown  all  it  was  worth  and  a  fair  and 
reasonable  value  for  said  note  of  Harry  L.  Brown,  at  that 
time,  to-wit,  sufficient  to  pay  the  indebtedness  of  the  estate 
of  James  L.  Gross  to  said  bank.  At  that  time  said  note  of 
Harry  L.  Brown  was  only  secured  by  a  second  mortgage  on 
said  property  of  Harry  L.  Brown  and  a  sale  of  said  note 
realized  sufficient  only  to  pay  the  indebtedness  of  said  James 
L.  Gross. 


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HOW  TO  DO  LAW  OFFICE  STENOGRAPHY 


Said  real  estate  note  of  Harry  L.  Brown  was  subsequently 
discounted  in  the  assets  of  said  Second  National  Bank  and 
endorsed  to  this  defendant  for  value  before  maturity,  and 
without  notice  of  any  defense  either  as  set  out  in  said  bill  of 
complaint  or  otherwise,  prior  to  maturity  and  on  the  21st  day 
of  May,  1912,  when  all  the  assets  of  the  said  Second  National 
Bank  were  purchased  by  and  endorsed  to  this  defendant. 

5.  This  defendant  denies  that  the  Second  National  Bank  and 
this  defendant  were  consolidated,  amalgamated  or  merged  to- 
gether, either  under  terms  or  conditions  known  or  unknown  to 
the  complainant,  and  says  the  fact  is  that  all  of  the  assets  of 
the  said  Second  National  Bank  were  bought  by  this  defendant, 
all  of  the  notes  of  said  Second  National  Bank  endorsed  to  this 
defendant,  among  which  was  the  note  of  Harry  L.  Brown, 
which  was  endorsed  to  this  defendant  in  the  due  and  usual 
course  of  business  for  value  and  before  maturity  of  said  note. 
This  defendant  says  it  is  untrue  that  there  has  ever  been  a 
merger  between  the  said  Second  National  Bank  and  this  de- 
fendant, but  says  that  all  the  promissory  notes  held  by  said 
Second  National  Bank  were  bought  by  this  defendant  and 
endorsed  to  this  defendant  by  said  Second  National  Bank  in 
consideration  of  this  defendant  assuming  and  paying  the 
depositors  of  the  said  Second  National  Bank  the  money  by 
them  deposited  and  due  from  said  Second  National  Bank  on 
the  21st  day  of  May,  1912,  and  the  payment  by  this  defendant 
to  the  Second  National  Bank  of  cash  of  an  amount  equal,  to- 
gether with  the  deposits,  on  the  face  value  of  the  notes  held 
by  the  said  Second  National  Bank,  among  which  was  the  note 
of  Harry  L.  Brown,  so  that  this  defendant  paid  the  said  Sec- 
ond National  Bank  for  said  note  of  Harry  L.  Brown,  the  sum 
of  $695.00  and  accrued  interest  to  May  21,  1912,  for  said  note. 
Defendant  denies  that  the  assets  of  said  Second  National  Bank 
were  taken  over  by  this  defendant,  subject  to  all  equities  and 
claims  thereon,  or  that  this  defendant  assumed  all  the  liabili- 
ties of  the  said  Second  National  Bank.  Defendant  denies  that 
among  the  assets  or  contracts  transferred  to  this  defendant 
by  said  Second  National  Bank  was  the  indebtedness  of  said 
James  L.  Gross  to  said  Second  National  Bank,  but  says  that 


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HOW  TO  DO  LAW  OFFICE  STENOGRAPHY 

the  said  James  L.  Gross  never  owed  this  defendant  any  money 
by  reason  of  any  transactions  with  said  Second  National  Bank, 
that  it  has  never  had  among  the  assets  passed  to  it  by  said 
Second  National  Bank  any  note  of  said  James  L.  Gross,  but 
that  there  was  in  the  assets  of  said  Second  National  Bank, 
which  was  endorsed  and  negotiated  to  this  defendant  in  the 
due  and  usual  course  of  business,  for  value  and  before  matur- 
ity, the  note  of  Harry  L.  Brown,  for  $695.00,  as  hereinbefore 
set  forth,  and  the  defendant  says  that  this  defendant  is  a 
bona  fide  holder  and  owner  for  value  before  maturity  and 
without  notice,  of  said  note. 

6.  Answering  paragraph  six,  this  defendant  says  that  it  is 
unable  to  either  affirm  or  deny,  and  if  material  calls  for  strict 
proof,  of  any  agreement  between  the  attorney  for  Harry  L. 
Brown,  or  the  estate  of  Harry  L.  Brown,  and  the  complainant 
in  this  suit.  The  defendant  says  that  the  attorney  for  the 
complainant  wrote  to  this  defendant  a  letter  as  set  forth  in 
' '  Exhibit  C, "  to  the  bill  of  complaint,  and  that  the  defendant 
replied  in  accordance  with  "Exhibit  D,"  which  this  de- 
fendant prays  may  be  read  as  part  of  this  answer,  and  says  the 
facts  contained  in  said  ''Exhibit  D"  are  true.  Defendant 
says  that  this  defendant  has  not  succeeded  to  the  rights  and 
property  and  assumed  all  the  equities  and  obligations  of  the 
said  Second  National  Bank,  as  set  forth  in  said  paragraph 
six,  but  says  that  the  facts  are  as  hereinbefore  stated.  Fur- 
ther answering  said  paragraph  six,  the  defendant  says  that 
"W.  T.  Phillips  was  cashier  of  the  Second  National  Bank  and 
that  subsequent  to  the  purchase  of  the  assets  of  the  said  Sec- 
ond National  Bank  by  this  defendant,  the  said  W.  T.  Phillips 
was  employed  by  this  defendant  as  manager  of  its  Fourteenth 
Street  branch,  but  said  W.  T.  Phillips  is  only  an  employee  of 
this  defendant  and  not  an  officer.  This  defendant,  by  reason 
of  being  uninformed,  is  unable  to  either  admit  or  deny  the 
averments  of  said  bill  of  complaint,  that  the  letter  of  June  17, 
1913,  was  the  first  notice  that  the  complainant  or  her  attorney 
had  that  this  defendant  claimed  title  to  said  note  of  Harry 
L.  Brown,  but  if  material,  calls  for  strict  proof  thereof.  This 
defendant  says  that  the  said  complainant  had  notice  of  the  in- 
tended sale  of  said  collateral  by  the  said  Second  National  Bank 


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91 


HOW  TO  DO  LAW  OFFICE   STENOGRAPHY 


as  hereinbefore  set  forth,  by  notice  addressed  to  her,  at  her 
post  office  address,  and  mailed  to  her  by  the  United  States 
mails,  and  that  no  occasion  has  arisen  for  this  defendant  to  say 
anything  to  the  attorney  for  the  complainant,  or  to  com- 
plainant herein,  about  said  note  of  Harry  L.  Brown,  not  know- 
ing either  had  any  interest  therein. 

7.  Answering  paragraph  seven,  this  defendant  admits  that 
said  attorney  for  the  complainant  wrote  "Exhibit  E"  to  the 
president  of  this  defendant,  although  said  attorney  for  the 
complainant  then  well  knew  and  had  previously  been  in  cor- 
respondence with  the  attorney  representing  this  defendant 
and  knew  that  this  defendant  was  represented  by  counsel, 
with  whom  he  had  previously  been  in  correspondence  about 
said  matter,  and  that  this  defendant  replied  to  said  attorney 
for  the  complainant,  in  accordance  with  "Exhibit  F,"  and 
says  that  the  facts  contained  in  said  "Exhibit  F"  are  true, 
and  prays  that  the  same  may  be  read  as  part  hereof,  as  though 
incorporated  herein;  that  complainant  has  failed  to  attach  to 
his  bill  of  complaint  an  enclosure  with  said  "Exhibit  F," 
which  is  hereto  attached  as  "Exhibit  B."  Defendant  says 
that  this  defendant  did  not  unjustly  and  wrongfully  set  up 
and  claim  the  title  and  ownership  of  said  promissory  note  of 
Harry  L.  Brown,  but  says  it  rightfully  owns  said  note,  having 
purchased  same  for  value  and  before  maturity,  without  any 
notice  of  defense  thereto,  from  said  Second  National  Bank  and 
said  Second  National  Bank  having  endorsed  said  note  to  this 
defendant,  and  further  says  that  this  defendant  did  right- 
fully refuse  to  account  to  this  complainant  for  said  note  or  to 
accept  from  this  complainant  any  sum  of  money  less  than  the 
face  value  of  said  note  for  same.  Defendant  denies  that  it  was 
expressly  understood  or  impliedly  understood  or  agreed  be- 
tween the  complainant  and  the  Second  National  Bank  that  the 
note  of  Harry  L.  Brown  should  not  be  sold  by  said  Second 
National  Bank,  and  says  there  was  no  such  agreement.  The 
defendant  further  denies  that  no  notice  whatever,  either 
verbal  or  written  was  given  by  the  defendant,  Second  National 
Bank,  or  by  this  defendant  of  the  sale  of  said  note  of  Harry 
L.  Brown,  and  says  the  fact  is  said  Second  National  Bank  be- 


92 


HOW  TO  DO  LAW  OFFICE  STENOGRAPHY 


fore  selling  said  note  of  Harry  L.  Brown,  under  the  collateral 
note  held  by  defendant,  Second  National  Bank,  from  said 
James  L.  Gross,  notified  the  complainant,  through  the  United 
States  mails,  of  its  intended  sale,  although  by  the  terms  of 
said  collateral  note,  no  notice  was  required,  and  that  the  sale 
was  made  in  accordance  with  the  terms  of  said  collateral  note. 

This  defendant  further  says  that,  at  the  time  of  purchase 
of  said  note  of  Harry  L.  Brown  from  the  said  Second  National 
Bank  by  this  defendant,  and  endorsement  of  said  Second  Na- 
tional Bank  to  this  defendant  of  the  said  note  of  Harry  L. 
Brown,  it,  this  defendant,  had  no  knowledge  of  any  history  of 
said  note  of  Harry  L.  Brown  for  $695.00  as  aforesaid,  but 
that  simply  the  said  note  of  Harry  L.  Brown  was  held  among 
the  assets  of  said  Second  National  Bank  as  one  of  its  real 
estate  loans,  had  not  matured  and  was  endorsed  to  this  de- 
fendant in  good  faith,  this  defendant  believing  the  same  was 
a  bona  fide  obligation  of  said  Harry  L.  Brown,  and  accepted 
the  same  for  value  and  before  maturity,  and  that  it  was  not  for 
some  time  thereafter,  and  after  the  purchase  price  of  said 
note  had  been  paid  to  said  Second  National  Bank,  that  the 
defendant  discovered  the  history  of  said  note,  as  herein  set 
forth,  none  of  which  facts  were  shown  to  this  defendant  at 
the  time  it  purchased  said  note  in  May,  1912.  Further  answer- 
ing said  paragraph  seven,  this  defendant  says  that  there  was 
a  bona  fide  sale  of  said  note,  by  said  Second  National  Bank 
under  the  terms  of  the  collateral  note  of  James  L.  Gross,  and 
although  notice  of  said  intended  sale  was  given  to  said  com- 
plainant, no  notice  was  required  under  the  terms  of  said 
collateral  note. 

8.  Answering  paragraph  eight,  this  defendant  says  it  has 
no  knowledge  of  the  matters  contained  in  said  paragraph,  and 
therefore  neither  affirms  nor  denies  the  same,  but  if  material 
calls  for  strict  proof  thereof.  Further  answering  said  para- 
graph eight,  this  defendant  says  that  the  said  Harry  L. 
Brown,  or  his  estate,  cannot  discharge  his  obligation  to  the 
defendant  on  said  note  by  paying  the  complainant  therefor. 


94 


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r 

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.....i. 


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95 


HOW  TO  DO  LAW  OFFICE  STENOGRAPHY 


9.  Answering  paragraph  nine,  defendant  says  that  on  the 
26th  day  of  September,  1913,  Mr.  Daniel  W.  McKelway,  repre- 
senting the  complainant,  came  into  the  branch  bank  of  the  de- 
fendant at  Fourteenth  and  U  Streets,  and  there  said  he  de- 
sired to  take  up  a  note  due  by  said  James  L.  Gross  to  said 
defendant,  and  that  at  the  time  said  Daniel  W.  McKelway 
came  to  said  bank  he  well  knew  that  this  defendant  did  not 
hold  any  such  note  of  James  L.  Gross  and  that  said  James  L. 
Gross  was  not  indebted  to  this  defendant  in  the  sum  of  $245 
and  that  this  defendant  had  no  right  to  accept  money  due  for 
an  obligation  which  this  defendant  did  not  hold,  or  know  any- 
thing about.  Defendant  says  that  said  James  L.  Gross  is  not 
and  was  not  on  the  26th  day  of  September,  1913,  indebted  to 
this  defendant  in  the  sum  of  $245  by  reason  of  any  note  held 
by  this  defendant.  This  defendant  says  that  it  is  unable  to 
know  what  the  attorney  for  the  complainant  feared,  but  this 
defendant  has  never  threatened  or  indicated  any  attempt  to 
negotiate  said  note,  although  it  claims  the  right  to  do  so,  if 
it  feels  so  inclined,  and  says  that  this  defendant  has  the  right 
to  enforce  the  payment  of  said  note,  as  the  same  is  justly  due 
to  this  defendant.  Defendant  says  the  said  Daniel  W.  Mc- 
Kelway only  desired  to  pay  this  defendant  the  sum  of  $245 
and  obtain  for  same  notes  for  $695.  This  defendant  says  it  is 
true  that  defendant  refused  and  still  refuses  to  deliver  the 
said  note  to  this  complainant  because  defendant  says  it  has  a 
right  to  said  note  and  owns  the  same,  and  this  defendant  de- 
nies it  has  ever  threatened  to  proceed  against  the  maker  of 
said  note,  by  the  sale  of  said  real  estate  in  "West  Riverdale, 
Maryland,  but  says  it  has  the  right  to  do  so,  and  likewise  has 
a  right  to  enforce  the  personal  payment  of  said  obligation 
from  said  estate  of  Harry  L.  Brown,  when  said  note  matures. 

And  having  fully  answered,  this  defendant  prays  that  this 
bill  of  complaint  may  be  dismissed  with  the  costs  to  this  de- 


96 


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., 

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97 


HOW  TO  DO  LAW  OFFICE  STENOGRAPHY 

fendant  and  the  preliminary  injunction  heretofore  granted 
may  be  dissolved. 

UNION  TRUST  &  SAVINGS  BANK, 
By  . 


Vice-President  and  Treasurer. 


Solicitor  for  Union  Trust  and  Savings  Bank. 
United  States  of  America.  ) 

oo 

District  of  Columbia,  ) 

I,  Henry  J.  Samuels,  do  solemnly  swear  that  I  am  vice- 
president  and  treasurer  of  the  Union  Trust  and  Savings 
Bank,  the  defendant  in  the  foregoing  answer ;  that  I  have  read 
the  said  answer  and  the  facts  stated  therein  upon  personal 
knowledge  are  true,  and  those  stated  upon  information  and 
belief,  I  believe  to  be  true. 


Subscribed  and  sworn  to  before  me  this  6th  day  of  October, 
1913. 


Notary  Public,  District  of  Columbia. 


98 


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s=r ^X_^ --J 


99 


HOW  TO  DO  LAW  OFFICE   STENOGRAPHY 


AFFIDAVITS 

The  bill  of  complaint  asked  for  a  surrender  of  the 
note  in  question  on  payment  by  complainant  of  the  bal- 
.ance  of  the  James  L.  Gross  indebtedness  and  also 
prayed  for  an  accounting.  An  injunction  was  requested 
restraining  the  defendants  from  disposing  of  the  note 
in  question  and  from  selling  or  attempting  to  sell  the 
mortgaged  property.  A  preliminary  injunction  was 
granted  by  the  court. 

An  injunction  is  a  prohibitory  writ,  issued  by  the 
authority  and  generally  under  the  seal  of  a  court  of 
equity,  to  restrain  one  from  doing  an  act  which  is 
deemed  inequitable  so  far  as  regards  the  right  of  some 
other  party  or  parties  to  such  suit  or  proceedings  in 
equity. 

Preliminary  injunctions  are  used  to  restrain  the 
party  enjoined  from  doing  or  continuing  to  do  the 
wrong  complained  of,  either  temporarily  or  during  the 
continuance  of  the  suit  or  proceeding  in  equity  in  which 
such  injunction  is  granted  and  before  the  rights  of  the 
parties  have  been  settled  by  the  decree  of  the  court  in 
such  suit  or  proceeding.  The  sole  object  of  a  prelimi- 
nary injunction  is  to  preserve  the  status  quo  until  the 
merits  can  be  heard.  The  status  quo  is  the  last  peace- 
able, uncontested  status  which  preceded  the  pending 
controversy,  and  a  wrongdoer  cannot  shelter  himself 
behind  a  sudden  or  recently  changed  status. 

The  answer  prays  for  a  dissolution  of  the  prelimi- 
nary injunction.  In  support  of  the  answer  and  of  a 
motion  to  dissolve  the  injunction,  there  were  filed  two 

100 


HOW  TO  DO  LAW  OFFICE   STENOGRAPHY 

affidavits,  one  of  W.  T.  Phillips  and  the  other  of 
Thomas  W.  Steadman.  These  follow  the  answer  in 
their  regular  order.  Then  is  printed  the  replication. 

The  replication  is  the  complainant's  answer  to  the 
defendant's  plea  or  answer.  A  general  replication  is 
a  general  denial  of  the  truth  of  the  defendant's  plea  or 
answer,  and  of  the  sufficiency  of  the  matter  alleged  in 
it  to  bar  the  plaintiff's  suit.  Such  a  replication  is 
always  sufficient  to  put  in  issue  every  material  allega- 
tion of  an  answer  or  amended  answer,  unless  the  rules 
of  pleading  imperatively  require  an  amendment  of  a 
bill. 

The  form  of  affidavit  is  shown  on  the  following  pages 
and  that  of  a  replication  immediately  follows. 

Issue  having  been  joined,  the  case  came  on  for  hear- 
ing, the  court  finding  for  the  complainant.  This  is  the 
formal  order  of  court  which  is  entered  of  record,  the 
form  for  which  is  shown  on  page  111.  From  this  decree 
the  defendant  noted  an  appeal  to  the  higher  court,  the 
Court  of  Appeals  of  the  District  of  Columbia,  and  re- 
quested the  court  to  fix  the  amount  of  the  appeal  bond 
to  act  as  a  supersedeas.  The  court  fixed  the  amount  of 
the  bond  at  $900.  This  is  not  a  pleading  in  the  sense 
that  it  is  filed  with  the  papers,  but  is  in  the  nature  of 
an  order  noted  in  the  docket. 

The  defendant  then  filed  the  Assignment  of  Errors, 
as  they  appear  in  the  form  shown  on  page  114.  This  is 
followed  by  the  Designation  of  Kecord,  in  which  the 
Clerk  is  requested  to  include  in  the  transcript  of  record 
the  various  pleadings.  These  follow  in  their  regular 
order. 


101 


HOW  TO  DO  LAW  OFFICE  STENOGRAPHY 

In  the  Supreme  Court  of  the  District  of  Columbia. 

Mary  A.  Gross,  Administratrix  of  the  ) 
Estate  of  James  L.  Gross,  deceased,  ) 

Complainant,  ) 

)    AFFIDAVIT 
vs.  )    OFW.  T. 

)    PHILLIPS 

Union  Trust  &  Savings  Bank,  a  Corpora-  ) 
tion;  Second  National  Bank,  a  Corpora-  ) 
tion,  ) 

Defendants.  ) 

United  States  of  America,  ) 
District  of  Columbia,  ) 

W.  T.  Phillips,  being  first  duly  sworn  on  oath,  deposes  and 
says,  that  he  is  the  manager  of  the  Fourteenth  Street  Branch  of 
the  Union  Trust  &  Savings  Bank  and  was  formerly  employed 
as  cashier  of  Second  National  Bank;  that  he  is  fully  ac- 
quainted with  all  the  transactions  herein  contained,  and  the 
same  are  set  forth  in  the  answer  to  the  bill  of  complaint ;  that 
the  note  of  James  L.  Gross  for  two  hundred  and  sixteen 
dollars  was  discounted  for  said  James  L.  Gross  by  Second 
National  Bank  while  the  affiant  was  cashier,  the  same  being  a 
collateral  note,  payable  on  demand,  and  having  surrendered 
as  collateral  the  real  estate  note  of  Harry  L.  Brown  for  six 
hundred  and  ninety-five  dollars,  which  was  secured  by  second 
mortgage  on  certain  property  in  West  Riverdale,  Maryland ; 
that  the  officials  of  said  bank  who  discounted  the  said  note  did 
not  regard  the  same  as  worth  more  than  two  hundred  dollars, 
by  reason  of  the  fact  it  was  a  second  mortgage  note  on  country 
property  outside  of  the  District  of  Columbia;  that  although 
not  required  by  the  terms  of  said  note,  notice  was  given  to  this 
complainant  of  the  demand  for  said  note,  and  said  demand 
was  made  in  accordance  with  the  terms  of  said  note,  and  the 
complainant  was  notified  of  the  intended  sale,  and  the  sale  was 
made  in  accordance  with  the  terms  of  the  said  note.  That  said 
note  of  Harry  L.  Brown  afterwards  became  the  property  of 
said  Second  National  Bank,  and  in  the  due  and  usual  course  of 
business,  for  value  and  before  maturity,  said  note  was  en- 

102 


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103 


HOW  TO  DO  LAW  OFFICE  STENOGRAPHY 


dorsed  to  the  defendant,  Union  Trust  &  Savings  Bank,  as  set 
forth  in  the  said  answer  of  the  Union  Trust  &  Savings  Bank. 
Affiant  further  says  that  at  the  time  of  the  visit  of  Daniel 
"W.  McKelway  to  the  Fourteenth  Street  branch  of  the  Union 
Trust  &  Savings  Bank,  in  the  month  of  September,  1913,  he 
claimed  that  this  affiant  had  made  an  agreement  with  him  by 
which  this  affiant  would  not  foreclose  the  collateral  note  of 
James  L.  Gross  and  sell  the  said  note  of  Harry  L.  Brown,  and 
affiant  responded  to  said  Daniel  W.  McKelway  that  he  had 
never  seen  said  Daniel  W.  McKelway  before  and  he  was  ab- 
solutely sure  he  never  made  any  such  agreement  for  two 
reasons,  first,  that  he  did  not  know  Mr.  Daniel  W.  McKelway, 
and  second,  that  it  had  not  been  within  his  official  duties  or 
prerogatives  as  cashier  of  the  said  Second  National  Bank  to 
make  any  such  agreement,  or  within  his  power  to  do  so,  as  all 
such  matters  were  determined  by  the  then  president  of  the 
Second  National  Bank,  Mr.  Thomas  W.  Steadman. 


Subscribed  and  sworn  to  before  me  this  7th  day  of  October, 
1913. 


Notary  Public,  District  of  Columbia. 


104 


\. 


105 


HOW  TO  DO  LAW  OFFICE  STENOGRAPHY 
In  the  Supreme  Court  of  the  District  of  Columbia. 

Mary  A.  Gross,  Administratrix  of  the  ) 
Estate  of  James  L.  Gross,  deceased,  ) 

Complainant,  ) 

)  AFFIDAVIT 
vs.  )  OF  THOMAS 

)  W.STEADMAX 

Union  Trust  &  Savings  Bank,  a  Corpora-  ) 
tion;  Second  National  Bank,  a  Corpora-  ) 
tion,  ) 

Defendants.  ) 

United  States  of  America,  ) 
District  of  Columbia,  ) 

Thomas  W.  Steadman,  being  duly  sworn,  says  that  he  was 
the  president  of  the  Second  National  Bank  from  the  date  of 
its  organization  until  May,  1912 ;  that  while  he  was  president 
of  said  bank,  the  note  of  James  L.  Gross,  dated  May  19,  1909, 
was  discounted;  that  at  that  time  said  collateral  note  had  at- 
tached to  it  the  note  of  Harry  L.  Brown  for  six  hundred  and 
ninety-five  dollars,  secured  by  second  mortgage  on  real  estate 
in  "West  Riverdale,  Maryland;  that  this  affiant  became  con- 
vinced that  the  said  security  was  worth  about  two  hundred 
dollars ;  that  said  note  remained  in  the  bank  until  February, 
1912,  and  had  been  reduced  to  about  two  hundred  dollars, 
and  in  addition  said  James  L.  Gross  was  liable  to  said  bank 
for  the  sum  of  Twenty-four  Dollars  by  reason  of  his  endorse- 
ment of  a  note  of  one  Carleton ;  that  this  affiant,  on  February 
9,  1912,  addressed  a  letter  to  Mary  A.  Gross,  the  complainant, 
and  mailed  the  same  in  the  United  States  mails  properly  ad- 
dressed, a  copy  of  which  letter  is  attached  to  the  answer  of 
the  Union  Trust  &  Savings  Bank  and  marked  "Exhibit  B"; 
that  on  or  about  March  10,  1912,  the  said  notes  of  James  L. 
Gross,  not  having  been  paid,  this  affiant,  in  the  usual  course 
of  business,  had  said  notes  sold  and  received  for  them  all  that 
affiant  believed  they  were  worth  and  only  sufficient  to  pay  the 
claims  of  the  bank  against  said  James  L.  Gross. 

106 


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107 


HOW  TO  DO  LAW  OFFICE  STENOGRAPHY 

Affiant  further  says  that  he  never  made  any  agreement  with 
the  said  Daniel  W.  McKelway  or  with  the  complainant  by 
which  said  collateral  note  would  not  be  foreclosed,  and  that 
the  interest  on  the  Brown  note  would  be  credited  on  the  com- 
plainant's note;  that  this  affiant  never  heard  of  any  such 
alleged  agreement  until  after  he  ceased  to  have  any  connection 
with  the  Second  National  Bank,  in  May,  1912,  when  a  claim 
to  that  effect  was  made  by  Mr.  McKelway  and  the  officials  of 
the  Union  Trust  &  Savings  Bank  asked  this  affiant  about  it; 
that  this  affiant  made  no  agreement  of  the  kind  alleged  by  Mr. 
McKelway  in  the  bill  of  complaint  to  the  effect  that  the  said 
collateral  note  would  not  be  foreclosed,  and  knows  of  no  one 
who  did  make  any  such  agreement. 

Affiant  is  not  now  president  and  has  no  connection  with  the 
Second  National  Bank,  his  term  of  office  having  expired  on  or 
about  May,  1912,  and  affiant  is  informed  and  verily  believes 
that  the  Second  National  Bank  does  not  now  exist,  its  charter 
having  been  surrendered  and  the  corporation  dissolved. 


Subscribed  and  sworn  to  before  me  this  7th  day  of  October, 
1913. 


Notary  Public,  D.  C. 


108 


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1. 


109 


HOW  TO  DO  LAW  OFFICE   STENOGRAPHY 


In  the  Supreme  Court  of  the  District  of  Columbia. 

Mary   A.    Gross,   Administratrix   of   the  ) 
Estate  of  James  L.  Gross,  deceased,  ) 

Complainant,  ) 


vs. 


) 

)  REPLICATION. 

) 


Union  Trust  &  Savings  Bank,  a  Corpora-  ) 

tion;  Second  National  Bank,  a  Corpora-  ) 

tion,  ) 

Defendants.  ) 

The  complainant  hereby  joins  issue  upon  the  answer  of  the 
defendant,  Union  Trust  &  Savings  Bank,  filed  herein. 


Solicitor  for  Complainant. 


110 


HOW  TO  DO  LAW  OFFICE   STENOGRAPHY 


1*. 


A- 11 \ 

V  VA=> 

A      Vl      / 

*...£.....$.£?.£„..&........ L 

I  b 


y 


From  the  above  decree,  the  defendant,  Union  Trust  &  Sav- 
ings Bank,  hereby,  on  the  same  day  and  date,  notes  an  appeal 
to  the  Court  of  Appeals  of  the  District  of  Columbia,  and  re- 
quests the  court  to  fix  the  amount  of  the  appeal  bond  to  act  as 
a  supersedeas,  and  thereupon  the  court  hereby  fixes  the  amount 
of  said  bond  to  act  as  a  supersedeas  at  Nine  Hundred  ($900.00) 
Dollars. 


Judge. 

(NOTE. — In  the  regular  order  of  procedure,  the  above  order 
is  entered  after  the  decree  of  the  court.  It  appears  before  the 
decree  in  this  book  for  purpose  of  convenience  in  making  up 
the  pages.) 


Ill 


HOW  TO  DO  LAW  OFFICE  STENOGRAPHY 

In  the  Supreme  Court  of  the  District  of  Columbia. 

Mary  A.  Gross,  Administratrix  of  the  ) 
Estate  of  James  L.  Gross,  deceased,  ) 

Complainant,  ) 

.       ) 
vs.  )  DECREE. 

) 

Union  Trust  &  Savings  Bank,  a  Corpora-  ) 
tion;  Second  National  Bank,  a  Corpora-  ) 
tion,  ) 

Defendants.  ) 

This  cause  coming  on  to  be  heard  upon  the  pleadings  and 
evidence  produced  in  open  court  and  the  admission  of  the  de- 
fendant, Union  Trust  &  Savings  Bank,  for  the  purposes  of 
this  suit  to  assume  any  and  all  liability  that  may  be  proven 
or  established  against  the  defendant,  Second  National  Bank, 
said  admission  being  made  in  open  court  at  the  final  hearing 
of  this  cause,  and  after  being  argued  by  counsel  and  duly  con- 
sidered by  the  court,  it  is  by  the  court  this  twenty-sixth  day 
of  March,  1914, 

Ordered,  Adjudged  and  Decreed  that  the  complainant  do 
recover  from  the  defendant,  Union  Trust  &  Savings  Bank,  and 
that  said  defendant  do  forthwith  deliver  to  the  complainant, 
the  promissory  note  of  Harry  L.  Brown  for  six  hundred  and 
ninety-five  dollars,  dated  March  22, 1909,  secured  by  mortgage 
on  lots  one  (1),  two  (2),  and  three  (3),  in  block  six  (6),  in 
West  Riverdale,  Maryland,  upon  the  payment  by  the  com- 
plainant to  the  defendant  of  the  sum  of  one  hundred  and 
eighty-eight  ($188.00)  dollars,  being  the  net  amount  of  the 
indebtedness  of  the  estate  of  James  L.  Gross,  deceased,  to  the 
Union  Trust  &  Savings  Bank  on,  to-wit,  September  26,  1913. 

And  it  is  further  Ordered,  Adjudged,  and  Decreed  that  the 
restraining  order  heretofore  issued  herein  be  and  the  same  is 
hereby  continued  pending  any  appeal  herein;  all  with  costs 
to  the  defendant. 

And  it  is  further  Ordered,  Adjudged  and  Decreed  that  the 
decree  pro  confcsso  heretofore  passed  herein  against  the  de- 
fendant, Second  National  Bank,  be  and  the  same  is  hereby 
made  final. 

Judge. 
112 


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113 


HOW  TO  DO  LAW  OFFICE  STENOGRAPHY 


In  the  Supreme  Court  of  the  District  of  Columbia. 

Mary  A.  Gross,  Administratrix    of    the  ) 
Estate  of  James  L.  Gross,  deceased,  ) 

Complainant,  ) 

I    ASSIGNMENT 
'*    OF  ERRORS. 

Union  Trust  &  Savings  Bank,  a  Corpora-  ) 
tion,  ) 

Defendant.  ) 

The  defendant,  Union  Trust  &  Savings  Bank,  for  assign- 
ments of  errors  says  that  the  court  erred : 

First:  In  holding  that,  if  the  facts  are  such  as  were  at- 
tempted to  be  brought  out  by  the  complainant's  evidence, 
namely,  that  the  defendant  had  wrongfully  sold  a  promissory 
note  owned  by  the  complainant,  that  there  was  ground  for 
equitable  relief.  The  defendant  submits  that,  in  such  event, 
the  action  should  have  been  one  at  law  for  the  conversion  of 
the  property  or  for  the  recovery  of  its  possession. 

Second :  In  holding  that  there  was  any  consideration  shown 
for  the  agreement  alleged  with  the  counsel  for  the  com- 
plainant that  the  bank  would  not  sell  the  promissory  note  of 
Harry  L.  Brown,  which  had  been  attached  to  the  collateral 
note  of  James  L.  Gross. 

Third :  In  finding  as  the  fact  that  there  was  an  agreement 
made  between  the  Second  National  Bank  and  the  complainant, 
by  which  the  interest  on  the  Brown  note  would  be  allowed  to 
pay  the  principal  and  interest  on  the  Gross  note,  or  any  agree- 
ment, as  testified  to  by  counsel  for  complainant. 


Solicitor  for  Union  Trust 

and  Savings  Bank. 


114 


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115 


HOW  TO  DO  LAW  OFFICE  STENOGRAPHY 

In  the  Supreme  Court  of  the  District  of  Columbia. 

Mary  A.  Gross,  Administratrix,  etc.,  ) 

Complainant,  ) 

?  DESIGNATION 
(  OF  RECORD. 

Union  Trust  &  Savings  Bank,  a  Corpora-  ) 
tion,  ) 

Defendant.  ) 

The  clerk  will  please  include  in  the  transcript  of  record  to 
be  filed  herein: 

1.  The  Bill  of  Complaint  filed  September  26,  1913. 

2.  Answer  of  the  Union  Trust  &  Savings  Bank,  and  affi- 
davits attached,  filed  October  7,  1913. 

3.  Replication  filed  October  10,  1913. 

4.  Final  decree,  March  26,  1914. 

5.  Appeal  noted  March  26,  1914,  and  bond  as  supersedeas 
and  costs  filed. 

6.  Appeal  bond  approved  April  6, 1914. 

7.  Assignment  of  errors. 

8.  This  designation. 


Solicitor  for  Union  Trust 
and  Savings  Bank. 


116 


HOW  TO  DO  LAW  OFFICE  STENOGRAPHY 

TRANSCRIPT  AND  BRIEFS 

The  printed  record  as  made  up  in  each  case  for  a 
reviewing  court  (in  this  case  the  Court  of  Appeals  of 
the  District  of  Columbia),  is  called  the  Transcript  of 
Record.  It  contains  the  pleadings  filed  in  the  lower 
court,  an  abstract  of  the  testimony  adduced  at  the  hear- 
ing, all  orders  entered  by  the  court,  and  all  matters 
designated  in  the  Designation  of  Record.  This  is 
printed  and  certified  by  the  Clerk  of  the  trial  court  to 
be  a  true  and  correct  transcript  of  the  record. 

The  party  taking  the  appeal  is  then  designated  as  the 
"appellant";  the  party  defending  the  appeal  is  the 
' '  appellee. ' '  The  appellant  in  this  case  was  the  defend- 
ant in  the  lower  court,  the  Union  Trust  &  Savings  Bank, 
while  the  appellee  was  the  complainant,  Mary  A.  Gross, 
administratrix.  Had  the  defendant  been  successful  in 
the  trial  court  and  had  an  appeal  been  taken  to  the 
upper  court,  the  appellant  would  have  been  Mary  A. 
Gross,  administratrix,  and  the  appellee  the  Union  Trust 
&  Savings  Bank. 

After  filing  the  transcript  the  appellant  files  his  brief, 
which  is  a  legal  argument  on  the  questions  which  the 
record  brings  before  the  appellate  court.  This  is  fol- 
lowed by  a  brief  on  behalf  of  the  appellee.  Briefs  are 
generally  printed  and  vary  somewhat  according  to  the 
purposes  they  are  to  subserve. 

The  rules  of  most  of  the  appellate  courts  require  the 
filing  of  printed  briefs  for  the  use  of  the  court  and  op- 
posing counsel,  at  a  time  designated  for  each  side  be- 
fore hearing.  In  the  rules  of  the  Supreme  Court  and 
the  Circuit  Court  of  Appeals  of  the  United  States  the 

118 


HOW  TO  DO  LAW  OFFICE   STENOGRAPHY 

brief  is  required  to  contain  a  concise  statement  of  the 
case,  a  specification  of  errors  relied  on,  including  the 
substance  of  the  evidence,  the  admission  or  rejection  of 
which  is  to  be  reviewed,  or  any  extract  from  a  charge 
excepted  to,  and  a  brief  of  argument  exhibiting  clearly 
the  points  of  law  or  fact  to  be  discussed,  with  proper 
reference  to  the  record  or  the  authorities  relied  upon. 
Such  a  brief  will  generally  be  sufficient  to  answer  the 
requirements  of  any  of  the  courts  in  the  several  states 
whose  rules  require  printed  briefs. 

For  the  purpose  of  illustrating  brief  work,  there  is 
given  in  full  the  brief  for  appellant  and  the  appellee 
in  this  proceeding.  It  will  be  noted  that,  after  the  title 
and  venue,  the  ' l  Statement  of  Facts ' '  is  printed,  from 
the  viewpoint  of  the  appellant.  In  this,  comment  is 
made  on  the  evidence  adduced  at  the  trial.  Then  fol- 
lows the  "Argument"  which  is  divided  into  three 
heads,  namely,  "The  Jurisdiction  of  Equity,"  claim- 
ing that  an  action  at  law  was  the  real  remedy,  "The 
consideration  for  the  Agreement, ' '  claiming  lack  of  con- 
sideration; and  "The  Facts,"  in  which  it  is  claimed 
that  the  decree  was  not  justified  by  the  facts  brought 
out  in  the  evidence.  This,  together  with  the  .brief  of 
appellee,  should  furnish  ample  practise  for  brief  work, 
which  is  some  of  the  most  important  work  in  a  law 
office. 

Appellant's  brief  will  begin  on  the  next  page,  and 
will  be  immediately  followed  by  the  brief  of  appellee, 
which  controverts  the  contentions  and  arguments  ad- 
vanced in  appellant's  brief,  discusses  in  their  order  the 
assignments  of  error,  analyzes  the  authorities  cited  by 
appellant  and  quotes  from  the  decisions  of  previously 
determined  cases  to  sustain  appellee's  contentions. 

119 


HOW  TO  DO  LAW  OFFICE  STENOGRAPHY 

In  the  Court  of  Appeals  of  the  District  of  Columbia. 

Union  Trust  &  Savings  Bank,  a  Corpora-  ) 
tion,  ) 

Appellant,  ) 

{    BRIEF  FOR 
;}    APPELLANT. 

Mary  A.   Gross,   Administratrix   of   the  ) 
Estate  of  James  L.  Gross,  deceased,  ) 

Appellee.  ) 

STATEMENT  OF  FACTS 

This  is  an  appeal  by  the  defendant,  Union  Trust  &  Savings 
Bank,  from  a  decree  in  equity. 

The  principal  facts  in  the  case  are  developed  by  two  wit- 
nesses, one  upon  each  side,  and  the  surrounding  circumstances 
of  their  testimony. 

It  is  the  contention  of  the  appellant  that,  under  the  state  of 
facts  shown  by  the  records,  it  was  entitled  to  a  trial  by  jury  to 
determine  the  truth  of  the  controversy  between  the  two  wit- 
nesses, and  that  as  equity  had  taken  cognizance  of  the  situa- 
tion, as  developed  in  the  testimony,  it  has  been  deprived  of  its 
right  of  trial  by  jury.  The  appellant  likewise  submits  that 
the  evidence  preponderates  in  its  favor,  and  that  the  com- 
plainant has  not  sustained  the  burden  of  proof  cast  upon  her 
by  the  law. 

The  subject  matter  of  the  controversy  is  a  promissory  note 
secured  by  second  mortgage  on  certain  real  estate  at  Riverdale, 
Maryland,  which  was  signed  by  Harry  L.  Brown,  and  which 
is  claimed  by  the  complainant  to  be  owned  by  her  as  adminis- 
tratrix of  the  estate  of  James  L.  Gross. 

It  appears  that  on  May  19,  1909,  this  real  estate  note  was 
delivered  by  James  L.  Gross  to  the  then  Second  National  Bank 
as  collateral  to  a  note  which  is  set  forth  on  page  28  of  the 
record,  which  gave  to  the  Second  National  Bank  "full  power 
and  authority  *  *  *  in  case  of  such  default  in  the  payment  of 
any  of  the  liabilities  *  *  *  at  maturity  to  sell,  assign,  and  deliver 
the  whole  or  any  part  of  such  securities  *  *  *  at  any  brokers' 
board,  or  public  or  private  sale,  at  its  option,  at  any  time  or 

120 


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Yfc>  ......  fj  ..........    7.  .............  / 


121 


HOW  TO  DO  LAW  OFFICE  STENOGRAPHY 


times  thereafter,  without  advertisement  or  notice  to  him, 
with  the  right  on  its  part  to  become  purchaser  thereof  at  such 
sale  or  sales,  freed  or  discharged  of  any  equity  of  redemp- 
tion, and  after  deducting  all  legal  or  other  costs  and  expenses 
for  collection,  sale  and  delivery,  to  apply  the  residue  of  the 
proceeds  of  such  sale  or  sales  so  made  to  pay  any,  either  or 
all  of  said  liabilities." 

It  is  the  contention  of  the  complainant,  testified  to  by  her 
counsel,  Daniel  W.  McKelway,  that  Thomas  "W.  Steadman,  the 
then  president  of  the  Second  National  Bank,  on  October  27, 
1909,  told  complainant's  counsel  that,  as  the  indebtedness  of 
Mr.  Gross  to  the  bank  was  less  than  the  Brown  note,  the  in- 
terest of  the  Brown  note  would  be  credited  on  the  principal 
and  interest  of  the  Gross  indebtedness,  and  take  care  of  itself 
until  the  interest  on  the  Brown  note,  and  if  necessary  the 
principal  on  the  Brown  note,  would  wipe  out  the  indebtedness 
of  Mr.  Gross  to  the  bank.  The  same  day  this  agreement  was 
made,  the  witness,  McKelway,  used  the  check  of  Twenty  Dol- 
lars of  Brown's,  which  had  been  given  to  Mrs.  Gross  as  part 
of  Brown 's  interest  on  the  note  delivered  as  collateral  security 
to  partially  pay  and  take  up  an  entirely  separate  note  of  Mrs. 
Gross  not  connected  with  that  transaction.  Mr.  McKelway 
stated  that  the  agreement  mentioned  by  him  had  been 
in  the  presence  of  some  other  employee  of  the  bank  whom  the 
witness  did  not  know. 

This  statement  is  flatly  contradicted  by  Mr.  Steadman  at 
page  30  of  the  record.  Various  payments  of  interest  were 
made  on  the  Gross  collateral  note  from  the  date  it  was  dis- 
counted by  the  bank  in  1909  until  February  9,  1912,  when  the 
bank  caused  a  letter  to  be  sent  to  Mrs.  Gross,  properly  directed 
to  her  home  at  Riverdale,  Maryland  (page  29),  informing  her 
that  the  loan  had  been  criticized  by  the  bank  and  unless  ar- 
rangements were  made  by  March  19,  1912,  to  take  the  note  out 
of  the  bank  the  collateral  would  be  sold.  Although  Mrs.  Gross 


122 


--- 

V 


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\ 


123 


HOW  TO  DO  LAW  OFFICE  STENOGRAPHY 


testified  that  she  sent  all  papers  to  Mr.  McKelway  which  she 
received,  and  that  her  proper  post  office  address  was  River- 
dale,  Maryland,  she  did  not  receive  this  letter  (page  20) 
Steadman  testified  that  he  signed  the  letter  and  turned  it  over 
to  Phillips,  cashier  of  the  bank,  and  Mr.  Phillips  testified 
(page  37)  that  the  letter  had  been  dictated  to  him  by  Stead- 
man and  after  the  letter  had  been  written  he  took  it  to  Stead- 
man for  him  to  sign,  folded  the  letter  in  an  envelope,  sealed 
the  envelope  and  placed  it  in  the  receptacle  used  for  that  pur- 
pose, outside  of  the  receiving  teller's  cage,  where  all  mail  was 
deposited  and  where  at  the  end  of  the  day  the  boy  would  take 
it  up  and  mail  it.  as  was  his  duty,  in  the  usual  course  of  busi- 
ness. The  letter  was  admitted  in  evidence  without  objection  on 
the  part  of  the  complainant  after  a  witness  testified  that  he 
was  runner  for  the  bank  and  defendant  had  tendered  two 
other  witnesses  to  show  that  all  such  mail  matter  placed  in 
the  box  was  invariably  mailed  (page  38).  The  carbon  copy 
offered  in  evidence  on  its  face  showed  its  age. 

Witness  Steadman  testified  that  prior  to  the  writing  of  this 
letter,  the  Gross  loan  had  been  criticized  on  at  least  three 
different  occasions  by  the  bank  examiner  and  demand  made  on 
the  bank  that  the  money  be  collected  and  the  note  taken  out 
of  the  bank.  That  prior  to  Gross'  death,  witness  had  tried  to 
collect  it  from  Gross ;  that  the  witness  had  no  agreement  with 
Mr.  McKelway  on  October  27,  1909,  or  at  any  other  time, 
relative  to  the  Brown  note,  as  testified  to  by  McKelway  (page 
29),  and  identified  the  entries  in  the  bank's  book  indicating 
what  parts  were  in  witness's  handwriting  and  what  parts  were 
in  the  handwriting  of  the  note  teller,  Mr.  Richard  Thomas, 
who  is  not  now  in  Washington.  Witness  had  come  into  the 
bank  about  the  time  McKelway  was  leaving  but  had  no  con- 
versation, with  McKelway  whatever.  After  the  letter  had  been 


124 


125 


sent  to  Mrs.  Gross  and  no  response  had  been  received,  witness 
caused  the  note  to  be  sold  to  Mr.  Phillips,  who  paid  his  own 
money  for  it,  endorsed  the  real  estate  note  so  purchased  by  him 
and  discounted  it  in  the  Second  National  Bank.  Mr.  Phillips 
was  not  a  straw  man  but  a  bona  fide  purchaser,  and  his  en- 
dorsement added  sufficient  security  for  the  money  because 
Phillips  was  good  for  the  money.  In  the  sale  of  the  Second 
National  Bank  to  the  Union  Trust  &  Savings  Bank,  the  note 
passed  by  endorsement  with  the  other  assets. 

Counsel  for  the  Union  Trust  &  Savings  Bank  admitted  for 
the  purpose  of  this  suit  that  under  the  agreement  between  the 
Union  Trust  &  Savings  Bank  and  the  Second  National  Bank, 
if  there  had  been  any  liability  of  the  Second  National  Bank 
the  Union  Trust  &  Savings  Bank  was  liable  for  it. 

During  the  cross  examination  of  McKelway  he  identified  a 
great  deal  of  correspondence  between  him  and  the  bank, 
and  finally  stated  that  his  recollection  of  the  matter  was 
not  very  clear  as  there  are  many  things  a  lawyer  has  to  attend 
to  and  there  were  a  great  many  matters  on  his  mind  at  that 
time.  Asked  as  to  what  he  meant  by  the  words  in  his  letter, 
"if  possible,  I  would  like  to  make  a  settlement,"  he  said  he 
meant  whether  there  could  be  a  settlement  (page  24). 

The  witness  had  no  occasion  to  call  the  matter  to  his  attention 
again  until  June,  1913.  "Witness  McKelway  was  shown  a 
letter  dated  July  19,  1913,  written  by  him  to  the  president  of 
the  Second  National  Bank,  in  which  he  said  he  enclosed  a  copy 
of  a  letter  of  the  manager  of  the  Second  National  Bank,  Mr. 
Phillips,  dated  June  17,  1913,  "who  is  the  same  person  I  had 
the  dealings  with  at  the  Second  National  Bank,"  and  was 
asked  to  explain  the  reference  to  Mr.  Phillips,  who  had  pre- 
viously been  cashier  of  the  Second  National  Bank  and  who 
had  signed  the  letter  of  the  Union  Trust  &  Savings  Bank 
dated  June  17,  1913,  to  witness,  and  witness  replied  that  Mr. 
Phillips  was  the  man  who  was  with  Steadman,  but  when  wit- 
ness went  to  tender  the  money  in  June,  1913,  he  did  not  recog- 
nize Phillips. 

Witness  was  then  asked  (page  25)  whether  at  the  time 
this  cause  was  called  for  preliminary  hearing  in  October, 


126 


127 


HOW  TO  DO  LAW  OFFICE  STENOGRAPHY 


1913,  he  had  stated  in  the  court  room  and  offered  to  testify 
if  necessary  that  he  had  made  the  agreement  set  forth  in  the 
bill  of  complaint  relative  to  the  holding  of  the  Brown  note  as 
collateral  security  to  the  Gross  note,  and  allowing  the  interest 
on  one  to  pay  the  interest  and  principal  on  the  other,  with  Mr. 
Phillips.  "Witness  replied,  "No,  sir,  not  to  Mr.  Phillips.  My 
bill  was  filed  in  the  case  and  I  think  you  will  see  it  was  other- 
wise there  (page  25)."  Witness  was  then  asked  to  point  to 
any  place  in  the  bill  where  the  agreement  was  alleged  to  have 
been  made  by  Steadman  and  he  stated  that  he  had  not  alleged 
the  name  of  any  person  in  the  bill  with  whom  the  agreement 
was  made,  and  that  he  had  purposely  left  it  out  of  the  bill. 
Witness  was  asked  if  he  did  not  say  in  the  court  room  at  the 
time  of  the  preliminary  hearing  that  the  agreement  had  been 
made  by  Phillips,  and  he  said  "no." 

In -response  to  the  question  if  he  had  told  any  one  rep- 
resenting the  defendant  at  any  time  before  witness*  tes- 
timony was  given  in  the  court  room  on  the  day  of  the 
trial  that  the  agreement  had  been  made  with  Steadman,  wit- 
ness said  that  he  did  not  know  whether  he  had  said  that  to  any 
one,  but  it  was  always  his -understanding  that  Steadman  had 
made  the  agreement  (page  26).  When  he  was  asked  if  he  had 
stated  to  the  counsel  in  the  case  or  to  the  president  of  the 
Union  Trust  &  Savings  Bank  that  the  agreement  had  been 
made  with  Steadman,  he  said  that  he  was  unable  to  say 
whether  or  not  he  did,  but  he  did  not  remember  if  he  had.  The 
letter  of  July  19,  1913,  was  offered  in  evidence  by  the  defense. 

Witness  Steadman  (page  30)  testified  that  he  had  never, 
until  the  time  McKelway  stated  in  his  opening  statement  in 
court  on  the  day  of  the  trial,  heard  McKelway,  say  that  any 
arrangement  had  been  made  with  Steadman,  and  said  that  he 
had  not  made  any  such  arrangement  with  McKelway;  that 
witness  had  understood  from  several  parties  that  McKelway 
had  always  stated  he  had  made  the  alleged  agreement  with 
Phillips.  Phillips  testified  (page  36)  that  when  McKelway 
came  to  the  bank  in  1913,  he  was  with  another  person  who  was 


128 


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129 


HOW  TO  DO  LAW  OFFICE  STENOGRAPHY 

not  called  in  the  case  by  the  complainant,  to  make  the  tender  to 
take  up  the  Brown  note,  after  the  bank  had  declined  to  give 
it  to  the  complainant.  McKelway  stated  to  the  witness, 
Phillips,  that  the  witness,  Phillips,  had  made  the  arrangements 
with  McKelway  to  carry  this  Gross  matter  along.  Phillips 
told  McKelway  that  he  did  not  remember  ever  seeing  him 
before;  that  McKelway  had  never  made  any  such  agreement 
with  him  and  that  Phillips  had  never  heard  of  any  such 
agreement.  That  Phillips  had  never  heard  McKelway  state 
he  had  made  the  agreement  with  Steadman  prior  to  the  time 
McKelway  made  his  opening  statement  in  the  court  on  the  day 
of  his  testimony. 

Leon  Shaw,  a  witness  on  behalf  of  the  defendant,  testified 
that  he  was  in  the  employ  of  defendant's  counsel  and  was 
present  at  the  hearing  in  October,  1913,  on  return  to  the 
restraining  order  for  preliminary  injunction ;  that  McKelway 
at  that  time  stated  in  court  that  he  had  made  the  agreement 
about  the  Brown  note  being  held  and  the  interest  paying  off 
the  principal  and  interest  on  the  Gross  note  with  Phillips. 
Witness  did  not  hear  Steadman 's  name  mentioned  at  that 
time. 

ARGUMENT 
I 

THE  JURISDICTION  OF  EQUITY 

It  is  respectfully  submitted  that  the  case  at  bar  is  an  at- 
tempt by  the  complainant  to  make  a  possessory  'action  at  law 
an  equity  proceeding.  The  result  has  been  that  the  defendant, 
which  would  be  entitled  at  law  to  have  a  jury  pass  upon  the 
disputed  questions  of  fact,  has  been  deprived  of  that  trial  and 
in  place  of  that  jury  trial  the  questions  of  fact  have  been  sub- 
mitted to  a  chancellor  who  the  courts  have  said  is  removed 
from  the  affairs  of  life  and  consequently  not  so  capable  of 
judging  the  ordinary  affairs  of  human  beings. 

Upon  one  side  of  the  controversy  there  is  a  member  of  the 
bar  who  attempts  to  contradict  every  writing  in  the  case.  The 
note  gave  the  bank  the  absolute  right  to  sell  without  notice 
to  the  borrower.  He  attempts  to  contradict  that  by  saying 

130 


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v  v^j 


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131 


there  was  an  agreement  subsequent  to  the  written  agreement 
by  the  borrower  of  the  money  by  which  he  was  entitled  to 
notice.  The  bank,  notwithstanding  the  fact  it  was  not  compelled 
to  give  notice,  did  give  notice  by  the  letter  of  February  9,  and 
his  client  tries  to  contradict  the  receipt  of  this  notice.  The  testi- 
mony shows  in  three  different  instances,  namely,  to  Mr.  Phil- 
lips in  June,  1913,  when  he  made  the  tender  of  the  money, 
again  in  his  letter  to  the  president  of  the  Union  Trust  &  Sav- 
ings Bank,  where  he  said  Mr.  Phillips  made  the  agreement 
with  him,  and  again  in  the  court  room  at  the  time  of  the  pre- 
liminary hearing,  he  stated  that  he  had  made  the  agreement 
with  Phillips.  On  the  witness  stand  he  stated  that  the  origi- 
nal agreement  had  been  made  with  Steadman,  and  at  page 
25  of  the  record  he  said  that  he  had  purposely  left  out  of  the 
bill  of  complaint  the  party  with  whom  he  had  made  the  agree- 
ment. At  page  26  he  said  he  had  told  no  one  connected  with 
the  defense  until  the  day  of  the  trial  that  Steadman  had 
made  the  agreement.  We  respectfully  submit  that  to  put  the 
decision  of  a  question  of  that  kind  to  a  chancellor,  if  the 
law  entitled  defendant  to  a  trial  by  jury,  was  an  error. 

The  decree  in  this  cause  was,  in  substance,  a  decree  for 
possession.  If  the  Second  National  Bank  wrongfully  sold  the 
Brown  note,  it  converted  it  to  its  own  use  and  was  liable  for 
that  conversion ;  that  under  the  agreement  alleged  in  the  bill 
of  complaint  between  the  Second  National  Bank  and  the  Union 
Trust  &  Savings  Bank,  the  latter  was  liable  for  the  conversion 
if  the  former  was,  but  here  is  a  situation  wherein  there  was  a 
conversion  of  property  by  it  being  sold  to  Phillips,  not  a  party 
to  the  suit,  who  afterwards  discounted  it,  and  that  discount 
reaches  the  Union  Trust  &  Savings  Bank,  and  yet,  through  the 
medium  of  equity,  an  attempt  is  made  to  obtain  possession. 
We  respectfully  submit  that  if  the  Second  National  Bank  con- 
verted this  property,  it  was  liable  in  a  plain  and  simple  action 
at  law,  but  that  there  was  no  necessity  or  right  to  equity 
jurisdiction.  The  bringing  of  the  suit  in  equity  had  the  ef- 


132 


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133 


HOW  TO  DO  LAW  OFFICE   STENOGRAPHY 


feet,  if  not  designedly  so,  of  preventing  a  jury  passing  on  the 
differences  between  the  testimony  of  the  complainant's  coun- 
sel and  that  adduced  by  the  defendant.  The  defendant,  we 
submit,  was  entitled  to  a  trial  by  jury. 

Without  setting  the  same  forth  at  large,  for  the  purpose  of 
confining  this  brief  to  reasonable  limits,  we  respectfully  invite 
the  attention  of  the  court  to  the  following  authorities,  which 
substantially  hold  in  such  an  action  as  this  the  plain,  ample 
and  complete  remedy  of  the  complainant  is  an  ordinary  action 
at  law.  This  is  not  a  mortgage  but  a  pledge ;  it  is  not  a  trust 
but  a  bailment: 

Bulkeley  vs.  Welch,  31  Com.,  339. 

Roland  vs.  First  National  Bank,  135  Penn.  St.,  598. 

Walker  vs.  Bennett,  63  Mass.,  175. 

Hayward  vs.  Elliott  National  Bank,  96  U.  S.,  611. 

Lacombe  vs.  Forestall,  123  U.  S.,  562. 

Flowers  vs.  Sproule  (9  Ky.),  509. 

Jones  on  Collateral  Securities,  Sec.  431. 

Taylor  vs.  Turner,  87  111.,  302. 

Glidden  vs.  Merchants  Nat.  Bk.,  53  Ohio  St.,  588. 

In  the  Supreme  Court  cases  cited,  the  doctrine,  while  not 
applied  in  name,  was  applied  in  substance. 

We  have  refrained  from  citing  these  cases  at  large,  but  re- 
spectfully submit  each  held  in  substance  that  under  the  facts 
as  sought  to  be  found  by  the  complainant  the  action  was  one 
for  conversion,  or  in  the  event  they  desired  to  obtain  the  pos- 
session of  the  property,  of  replevin.  There  is  nothing  excep- 
tional in  the  nature  of  the  property  sought,  as  an  heirloom 
or  the  like,  that  would  give  equity  jurisdiction  for  an  action 
of  possession,  as  in  the  case  of  Rozer  vs.  May,  41  Washington 
Law  Reporter,  121. 


134 


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135 


HOW  TO  DO  LAW  OFFICE  STENOGRAPHY 

II 

THE  CONSIDERATION  FOR  THE  AGREEMENT 

It  is  respectfully  submitted  that  if  the  court  finds  adversely 
to  the  contention  of  the  defendant  that  there  was  no  jurisdic- 
tion in  equity,  under  the  facts  as  developed  by  the  com- 
plainant, still  the  court  should  not  find  for  the  complainant. 

The  contract  alleged  by  McKelway  to  have  been  made  with 
Steadman  that  the  interest  on  the  Brown  note  would  be  al- 
lowed to  pay  out  the  principal  and  interest  on  the  Gross  note 
was  without  any  consideration.  Nothing  passed  to  the  Sec- 
ond National  Bank  that  it  did  not  already  have,  and  there 
was  no  detriment  to  the  complainant.  The  Second  National 
Bank  already  had  the  right  to  foreclose  the  collateral  at  its 
choice;  the  note  had  been  in  the  bank  from  May  to  October, 
1909,  as  a  demand  note ;  the  Brown  note  did  not  mature  until 
1914,  and  yet,  without  any  consideration  alleged,  they  claim 
the  bank  made  the  contract  to  allow  a  demand  note,  put  in 
the  bank  in  1909,  to  remain  there  until  1914.  We  respect- 
fully submit,  in  order  to  sustain  such  a  position,  they  must 
show  some  consideration  for  it. 

Ill 

THE  FACTS 

We  have  somewhat  reviewed  the  facts  in  this  case,  and  con- 
sequently we  will  try  to  condense  what  we  have  to  say  here  in 
addition. 

We  respectfully  submit  to  the  court  that  in  order  to  sus- 
tain a  proposition  of  the  kind  submitted  by  the  complainant, 
the  testimony  should  be  unusually  strong,  owing  to  its  im- 
probability. When  Mr.  McKelway  went  to  the  bank  in  Oc- 
tober, 1909,  he  took  with  him  a  check  of  Mr.  Brown's  for 
part  of  the  interest,  but  he  did  not  apply  that  check  on  the 
Gross  note,  although  he  claims  at  that  time  he  made  the 
agreement  to  do  so.  He  applied  it  upon  one  of  Mrs.  Gross' 
obligations,  and  yet  he  claims  to  have  made  an  agreement  at 
that  time  that  he  should  be  permitted  to  allow  the  interest  on 
the  Brown  note  to  apply  on  the  Gross  indebtedness.  It  will 
be  remembered  that  in  1909  Gross  had  died ;  the  bank  knew 

136 


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137 


HOW  TO  DO  LAW  OFFICE  STENOGRAPHY 


he  was  dead ;  it  held  as  collateral  the  real  estate  note  on  coun- 
try property  due  in  five  years  secured  by  second  trust,  the 
first  trust  being  for  three  thousand  dollars.  The  Brown  note 
was  not  due  for  five  years.  Do  you  think  that  bank  officials, 
knowing  this  fact,  would  have  extended  a  note  for  five  years 
originally  brought  into  the  bank  and  held  as  a  commercial 
proposition?  Do  bank  officials  usually  do  such  things? 
The  interest  upon  the  Brown  note,  if  all  of  it  had  been  applied 
to  the  Gross  note,  would  only  have  decreased  it  a  very  small 
proportion.  The  note  was  not  held  as  a  real  estate  note  but 
as  a  commercial  proposition,  subject  to  the  criticism  of  the 
Treasury  Department  as  such,  and  the  facts  themselves,  we 
respectfully  submit,  show  that  any  banking  official  would  have 
been  slow  to  make  any  such  agreement  about  the  extension  of 
the  loan  for  five  years  to  come.  The  very  best  proof  that  it 
was  not  a  trick  to  deliberately  sell  the  security  is  that  it  re- 
mained in  the  bank  until  1912,  as,  if  the  promise  had  been 
made  deliberately,  with  the  intention  of  breaking  it,  the  col- 
lateral would  have  been  sold  shortly  afterward. 

"We  again  respectfully  call  the  court's  attention  to  the  fact 
that  McKelway  wrote  to  the  Second  National  Bank  in  May, 
1911,  and  used  these  words,  "if  possible,  I  would  like  to  make 
a  settlement  of  this  matter  so  as  to  get  the  proceeds  of  the 
note  of  Harry  L.  Brown,  or  so  much  thereof  as  may  belong  to 
the  estate  of  the  deceased,  in  order  that  the  administratrix 
may  close  her  accounts.  A  prompt  reply  will  be  much  ap- 
preciated." He  had  a  reply  under  date  of  May  26  giving 
the  information.  Witness  McKelway  attempts  to  explain  this 
reference.  He  further  states  that  after  the  bank  answered  in 
May,  1911,  witness  had  no  occasion  to  have  his  attention  called 
to  the  matter  until  June,  1913.  In  other  words,  we  submit, 
that  there  is  an  improbability  in  that  state  of  facts;  he  said 
in  1911  he  wanted  to  close  the  account  and  asked  for  a  prompt 
reply  so  that  the  administratrix  might  close  the  estate,  and  he 
got  a  prompt  reply ;  he  did  not  have  occasion  again  to  think 


138 


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139 


HOW  TO  DO  LAW  OFFICE   STENOGRAPHY 


about  the  matter  that  he  wanted  to  do  immediately  and 
promptly,  that  is,  make  a  settlement  and  close  the  estate,  until 
1913.  We  respectfully  submit  that  it  is  improbable  that  such 
could  have  been  the  case.  The  bank  waited  until  1912  before 
it  closed  this  item,  and  then  did  so  after  notifying  Mrs.  Gross, 
sending  her  a  letter  in  February  after  the  witness  Steadman 
had  tried  to  get  into  communication  with  McKelway  over  the 
telephone.  The  notice  was  not  required  under  the  contract 
with  Gross,  or  under  the  law,  but  the  defendant,  out  of 
abundant  precaution,  tried  to  give  it.  The  bank  did  not 
desire  to  sell  the  collateral.  Now  the  witness  McKelw'ay,  when 
he  comes  to  make  his  statement  in  court  and  to  present  his 
case  by  testimony,  knowing  the  vulnerable  part  of  the  defense 
and  that  the  defendant  had  been  misled,  perhaps  unintention- 
ally, was  not  willing  to  place  it  where  he  had  three  times 
placed  it  before,  with  Phillips,  but  says  that  he  made  his  con- 
tract with  Steadman,  changing  the  whole  course  of  both  his 
correspondence  and  his  verbal  statements.  This  fact,  if  such 
it  was,  he  had  never  told  before  to  a  single  individual,  not 
even  to  Steadman,  before  the  day  he  went  on  the  witness 
stand. 

We  respectfully  submit  that  the  witness  McKelway,  when 
he  admits,  on  page  24,  that  his  recollection  of  the  matter  was 
not  very  clear,  and  that  he  then  had  his  mind  on  a  great 
many  matters  in  reference  to  the  Gross  estate,  is  admitting 
what  is  the  fact,  as  we  have  submitted  to  the  court,  that  he 
was  mistaken  about  this  proposition,  and  that  the  complainant 
has  not  borne  the  burden  of  proof. 

We  therefore  respectfully  submit  that  if  the  court  agrees 
with  us  in  any  one  of  the  three  propositions,  the  decree  should 
be  reversed  and  the  bill  of  complaint  dismissed. 

If  equity  has  no  jurisdiction  in  this  matter,  we  respectfully 
submit,  that  would  end  it.  If  there  was  no  consideration  for 
the  contract,  that  would  likewise  end  the  case.  We  respect- 
fully submit  that  a  consideration  of  the  facts  will  convince 
this  honorable  court  that  the  complainant's  case  is  built  upon 
a  supposed  contract  about  which  one  witness  is  mistaken,  in 


140 


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141 


HOW  TO  DO  LAW  OFFICE  STENOGRAPHY 

trying  to  impeach  every  writing  in  the  case  and  all  other 
witnesses. 

We  respectfully  submit  that  the  decree  below  should  be 
reversed. 


Solicitor  for  Appellant. 


142 


143 


HOW  TO  DO  LAW  OFFICE  STENOGRAPHY 


In  the  Court  of  Appeals,  District  of  Columbia. 

) 

Union  Trust  and  Savings  Bank,  a  ) 

corporation  ) 

Appellant,  ) 

x  BRIEF  FOR 
(  APPELLEE 

Mary   A.    Gross,    administratrix    of    the  ) 
estate  of  James  L.  Gross,  deceased,  ) 

Appellee.  ) 
) 

While  we  agree  with  the  appellant's  brief  that  "the  princi- 
pal facts  of  the  case  are  developed  by  two  witnesses,  one  upon 
each  side,  and  the  surrounding  circumstances  of  their  testi- 
mony," we  do  not  think  that  its  "Statement  of  Facts"  is 
"sufficiently  full  and  complete"  (Sec.  4.  Rule  VIII.,  Ct. 
App.,  D.  C.). 

STATEMENT  OF  FACTS 

On  May  19, 1909,  one  James  L.  Gross  executed  as  maker  and 
delivered  to  the  Second  National  Bank  his  collateral  note  for 
$216,  payable  "on  demand,"  depositing  with  said  bank  as 
collateral  security  therefor  the  note  of  one  Harry  L.  Brown 
for  $695,  payable  five  years  after  date,  with  interest  at  five 
per  cent,  interest  payable  semi-annually,  secured  by  mortgage 
on  real  estate  in  Prince  George's  County,  Maryland  (Rec. 
28-30).  By  the  terms  of  this  collateral  note  the  Brown  note 
was  "security  for  payment  of  this  or  any  other  liability  or 
liabilities  to  said  bank,  due  or  to  become  due,  or  that  may 
hereafter  be  contracted."  James  L.  Gross  died  suddenly  on 
August  11,  1909,  and  his  wife,  Mary  A.  Gross,  was  appointed 
administratrix  by  the  court  in  Prince  George's  County  (Rec. 
19),  and  as  such  administratrix  was  the  complainant  below 
and  appellee  here. 

At  the  time  of  his  death,  James  L.  Gross  was  indebted  to 
said  bank,  either  as  maker  or  endorser,  in  the  sum  of  $471 
(Rec.  2, 19,  21)  as  follows: 

144 


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145 


HOW  TO  DO  LAW  OFFICE   STENOGRAPHY 


As  endorser  on  note  of  Robert 

L.  Corwin,  for $80  due  Sept.  28,  1909 

As  endorser  on  note  of  Mary 

A.  Gross,  for $60  due  Aug.  15,  1909 

As  endorser  on  note  of  Mary 

A.  Gross,  for $55  due  Aug.  15,  1909 

As  endorser  on  note  of  Robert 

L.  Corwin,  for $75  due  Sept.  28,  1909 

As  maker  on  balance  (Rec.  2, 

28)    of   the   collateral  note 

about  $201     due  on  demand. 


$471 

Soon  after  the  death  of  James  L.  Gross,  Corwin  paid  his 
note  for  $80  (Rec.  2,  21)  ;  and  on  August  15,  1909,  Mrs.  Gross 
personally  paid  the  $60  note  on  which  she  was  an  accommoda- 
tion maker  (Rec.  3,  21)  ;  and  on  the  same  date  she  took  up  the 
$55  note,  on  which  she  was  also  an  accommodation  maker,  by 
giving  said  bank  a  renewal  note  for  the  same  amount,  due 
October  16, 1909  (Rec.  3,  21) .  This  last  note  is  marked  "Paid 
October  27,  1909"  (Rec.  19),  the  date  when  the  appellee's 
attorney,  D.  W.  McKelway,  went  to  said  bank  and  had  a  con- 
versation with  Mr.  Thomas  Steadman,  the  then  president  of 
the  bank,  during  the  course  of  which  they  discussed  that  Mrs. 
Gross  was  not  liable  as  accommodation  endorser  or  maker  on 
her  husband's  note  (Rec.  21).  As  a  result  of  this  conversa- 
tion, the  president  of  said  bank  agreed  that  said  bank  would 
waive  its  right  to  sell  the  Brown  note,  and  would  let  Mr. 
Gross'  indebtedness  be  taken  care  of  by  the  Brown  interest 
being  credited  on  the  interest  and  principal  of  Mr.  Gross'  in- 
debtedness, provided  Mrs.  Gross  took  up  the  renewal  note  for 


146 


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HOW  TO  DO  LAW  OFFICE  STENOGRAPHY 


$55 ;  and  he  accepted  in  payment  of  this  $55  note  an  interest 
check  of  Brown  for  $20  which  Mrs.  Gross  had  received  from 
Brown  (Rec.  20),  and  Mrs.  Gross'  personal  check  for  $36, 
making  a  total  of  $56  for  the  note,  interest  and  protest  fees 
thereon  (Rec.  19,  21).  The  attorney  had  brought  with  him 
to  the  bank  both  of  said  checks  and  delivered  them  to  Stead- 
man  on  said  agreement  that  said  bank  would  let  the  Gross 
indebtedness  be  taken  care  of  by  the  Brown  future  interest 
payments  until  the  Brown  principal  was  paid  and  wiped  out 
all  the  Gross  indebtedness.  Steadman  accepted  the  two  checks 
on  that  understanding  and  made  a  memorandum  in  his  own 
handwriting  on  the  book  of  said  bank,  showing  the  payment 
of  the  note  on  which  Mrs.  Gross  was  an  accommodation  party, 
paid  as  follows :  "Check  of  Mary  A.  Gross  $36,  check  of  Harry 
L.  Brown  $20"  (Rec.  29).  Relying  on  this  arrangement, 
McKelway  had  no  further  communication  with  said  bank  until 
May  24,  1911,  when  he  wrote  the  bank  requesting  a  statement 
of  the  Gross  account  of  the  administratrix  (Rec.  22).  He  re- 
ceived a  reply  stating:  "Yours  of  the  24th  inst.  at  hand.  In 
reply  beg  to  state  that  at  the  present  time  the  indebtedness  of 
James  L.  Gross  to  this  bank  is  $244.  We  hold  as  collateral 
for  said  indebtedness  note  of  Harry  L.  Brown  for  $695,  which 
we  understand  is  secured  on  lot  next  to  house  of  Mr.  Brown. 
The  Brown  note  is  dated  March  22d,  1909,  for  five  years,  with 
interest  at  6  per  cent,  payable  semi-annually.  The  interest 
is  paid  to  March  22,  1911." 

This  letter,  signed  by  "W.  T.  Phillips,  Cashier,  showed  that 
the  interest  payments  by  Brown  had  reduced  the  Gross  in- 
debtedness to  $244,  and  that  the  matter  was  being  taken  care 
of  in  accordance  with  his  understanding  with  said  bank. 
Hence,  "he  did  nothing  further  in  regard  to  the  matter  until 
the  spring  of  1913,  when  a  Mr.  Stephens,  who  represented  the 


148 


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HOW  TO  DO  LAW  OFFICE  STENOGRAPHY 


Brown  estate,  came  to  see  him  in  reference  to  settling  the 
Brown  note  before  it  was  due"  (Rec.  22).  In  the  meantime 
the  said  bank  had  been  absorbed  by,  or  consolidated  with,  the 
Union  Trust  and  Savings  Bank  (Rec.  35,  36),  and  McKelway 
wrote  the  Union  Trust  &  Savings  Bank  inquiring  "what  bal- 
ance, if  any,  is  still  due  on  the  note  of  James  L.  Gross,  de- 
ceased, held  by  your  bank,  for  which  said  note  you  hold  as 
collateral  security  the  note  of  Harry  L.  Brown  for  $695,  and 
on  which  latter  note  you  have  collected  the  interest."  He 
received  a  reply  from  the  Union  Trust  and  Savings  Bank  stat- 
ing that  "we  hold  no  collateral  note  of  James  L.  Gross  as 
maker  on  which  the  collateral  is  a  note  of  Harry  L.  Brown 
for  $695.  We  do  hold,  however,  among  our  real  estate  notes, 
a  note  of  Harry  L.  Brown  for  $695,  which  is  not  due  until 
March  22, 1914." 

He  replied  the  following  day  to  this  letter  (Rec.  23),  calling 
the  Union  Trust  and  Savings  Bank's  attention  to  the  fact 
that  "It  was  understood  that  the  bank  should  continue  to  col- 
lect on  the  note  and  credit  such  collections  on  the  indebtedness 
of  James  L.  Gross  until  the  same  was  paid." 

There  was  some  further  correspondence,  and  then  McKel- 
way called  in  person  at  the  Fourteenth  Street  Branch  of  the 
Union  Trust  and  Savings  Bank  and  made  a  tender  (Rec.  24) 
of  $245.00  to  take  up  the  balance  of  the  Gross  indebtedness 
and  to  thus  redeem  the  collateral,  the  Brown  note.  This  ten- 
der was  refused,  and  the  Union  Trust  and  Savings  Bank,  hav- 
ing refused  to  make  proper  settlement  of  the  matter,  appellee 
filed  her  bill  of  complaint  on  September  26,  1913,  against  both 
the  Union  Trust  and  Savings  Bank  and  The  Second  National 
Bank,  alleging  in  full  the  foregoing  facts  and  praying  that 
the  Union  Trust  and  Savings  Bank  be  directed  to  surrender 
to  appellee  the  Brown  note  upon  the  payment  by  appellee  of 
the  balance  of  the  Gross  indebtedness;  that  both  defendants 
be  made  to  account;  that  both  defendants  be  restrained  from 
causing  the  Brown  real  estate  to  be  foreclosed ;  that  both  de- 
fendants be  required  to  discover  the  terms  of  their  consolida- 
tion ;  and  for  general  relief. 


150 


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HOW  TO  DO  LAW  OFFICE  STENOGRAPHY 

The  Union  Trust  and  Savings  Bank  filed  its  answer,  under 
oath,  denying  all  the  material  allegations  of  the  bill  of  com- 
plaint and  alleging  (Rec.  9)  that  "prior  to  the  purchase  of 
the  assets  of  said  Second  National  Bank  by  this  defendant" 
the  bank  had  sold  the  Brown  note  for  a  sum  "sufficient  to  pay 
the  indebtedness"  of  the  Gross  estate,  which  amounted  at  that 
time  to  $230  (Rec.  36).  It  developed  in  the  testimony  (Rec. 
37)  that  the  purchaser  was  W.  T.  Phillips,  who  "was  at  the 
time  the  cashier  of  the  bank"  and  the  "only  bidder  on  the 
note"  (Rec.  37). 

The  answer  further  alleged  that  the  Brown  note  "was 
subsequently  discounted  in  the  assets  of  said  Second  National 
Bank  and  endorsed  to  this  defendant  for  value  before 
maturity  (Rec.  10,  12),  and  that  the  Union  Trust  and  Sav- 
ings Bank  "owns  said  note,  having  purchased  same  for  value 
before  maturity  and  without  notice  of  defense  thereto" 
(Rec.  11). 

Nowhere  in  the  answer  is  there  any  language  that  could  pos- 
sibly be  construed  as  demurring  to  the  Court's  jurisdiction. 

The  other  defendant,  the  Second  National  Bank,  did  not  file 
an  answer,  and  there  was  a  decree  pro  confesso  against  it, 
which  was  made  final  (Rec.  16) . 

Issue  was  joined,  and  the  witnesses  gave  their  testimony  in 
the  presence  of  the  presiding  Justice,  and  at  the  hearing,  coun- 
sel for  the  Union  Trust  and  Savings  Bank  stated  that  rather 
than  produce  the  records  of  the  two  defendants,  required  by 
subpoena  duces  tecum,  which  would  show  the  real  transaction 
of  the  taking  over  of  the  bank  by  the  Union  Trust  and  Sav- 
ings Bank,  he  would  admit  that  the  Union  Trust  and  Savings 
Bank  took  the  note  or  notes  in  question,  subject  to  all  the  equities 
and  liabilities  attending  them  in  the  hands  of  the  bank.  This 
admission  was  made,  notwithstanding  the  previous  sworn 
denial  of  the  Union  Trust  and  Savings  Bank  that  it  assumed 
all  liabilities  of  the  Said  Second  National  Bank  (Rec.  10), 
and  is  noted  in  appellant's  brief,  as  follows: 

"Counsel  for  the  Union  Trust  and  Savings  Bank  ad- 
mitted, for  the  purpose  of  this  suit,  that  under  the  agree- 
ment between  the  Union  Trust  and  Savings  Bank  and  the 
Second  National  Bank,  if  there  had  been  any  liability  of 
the  Second  National  Bank,  the  Union  Trust  and  Sav- 
ings Bank  was  liable  for  it. ' ' 

152 


V 


v 


153 


HOW  TO  DO  LAW  OFFICE  STENOGRAPHY 

The  decree  recognized  this  admission  in  the  following  lan- 
guage (Rec.  16)  : 

' '  The  admission  of  the  defendant,  the  Union  Trust  and 
Savings  Bank,  for  the  purposes  of  this  suit,  to  assume  any 
and  all  liability  that  might  be  proved  or  established 
against  its  co-defendant,  the  Second  National  Bank,  said 
admission  being  made  in  open  court  at  the  final  hearing 
of  this  cause." 

The  hearing,  showing  that  the  bank  sold  the  Brown  note  for 
$230  (Rec.  37)  to  its  own  cashier,  who  was  the  only  bidder 
and  who  immediately  resold  the  note  for  its  face  value, 
$695,  "and  put  the  balance  into  his  own  pocket,"  resulted 
in  the  decree  set  forth  on  page  16  of  the  record;  and  only 
one  defendant,  the  Union  Trust  and  Savings  Bank,  prose- 
cuted its  appeal  to  this  Court. 

ARGUMENT  ON  FIRST  ASSIGNMENT  OF  ERROR 

Appellant's  first  assignment  of  error  is  that  the  facts 
brought  out  by  the  testimony  on  behalf  of  the  appellee  do  not 
constitute  ground  for  equitable  relief. 

At  the  outset  we  wish  to  call  your  Honor's  attention  that 
no  demurrer  was  interposed  to  the  bill  of  complaint  in  the 
lower  court,  not  the  slightest  objection  in  the  pleadings  or  in 
open  court  was  made  to  the  jurisdiction  of  the  equity  court 
until  at  the  close  of  counsel's  argument,  when  the  Justice  inti- 
mated he  would  sign  a  decree  for  the  appellee,  and  then,  for 
the  first  time,  appellant  raised  the  question.  Appellant  filed 
an  answer  to  the  bill  of  complaint,  and  not  a  word  anywhere 
in  its  answer  can  be  construed  as  demurring  to  the  bill.  It 
went  into  the  trial  of  the  cause,  cross-examined  the  appellee's 
witnesses,  produced  witnesses  in  its  own  behalf,  argued  the 
case  after  appellee  submitted  her  case  without  argument,  and 
then,  for  the  first  time,  when  the  presiding  Justice  ruled  for 
the  appellee,  orally  questioned  the  court's  jurisdiction.  It 
did  not  then,  and  even  now  does  not,  under  this  assignment, 
make  the  specific  objection  that  the  facts  alleged  in  appellee's 
bill  of  complaint  do  not  bring  the  action  within  the  equity 
court's  jurisdiction,  but  assigns  as  error  that  the  testimony 
adduced  by  appellee  in  support  of  the  allegations  of  her  bill 
of  complaint  is  not  such  that  equity  can  grant  relief  in  the 

154 


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155 


HOW  TO  DO  LAW  OFFICE  STENOGRAPHY 


premises.  That  the  facts  established  by  the  testimony  arc 
identical  with  all  the  essential  allegations  of  the  bill  of  com- 
plaint, does  not  change  the  aspect  of  this  assignment.  It  seems 
to  us  as  though  this  appellant,  having  neglected  to  file  in 
proper  form  a  demurrer  to  the  bill  of  complaint  at  the  proper 
time,  now  wishes  by  the  subterfuge  of  the  wording  of  this 
assignment  of  error  to  have  this  court  allow  it  to  interpose  an 
objection  that  for  all  practical  purposes  is  a  tardy  demurrer 
to  the  bill  filed  at  the  close  of  final  argument  in  the  cause. 

"We  are  aware  of  the  Equity  Rule  Number  32  of  the  lower 
court  abolishing  formal  demurrers,  but  our  understanding  of 
that  rule,  considered  with  Rule  No.  33,  is  that  it  does  not 
change  the  time  of  objection  to  the  court's  jurisdiction.  Our 
understanding  is  that,  if  the  defendant  wishes  to  raise  the 
jurisdictional  question,  he  must  do  so  by  a  "motion  to  dismiss" 
and  have  the  court  dispose  of  the  motion  before  filing  an 
answer  in  the  cause  and  entering  into  trial  on  the  merits. 

But,  treating  this  assignment  of  error,  either  as  a  demurrer 
to  the  court's  jurisdiction  on  account  of  the  evidence,  or  as 
a  motion  to  dismiss  the  bill  of  complaint  for  want  of  equity, 
we  respectfully  submit  the  objection  comes  too  late.  When 
appellant  answered  and  went  into  the  trial  of  the  cause,  with- 
out interposing  a  motion  to  dismiss,  it  waived  any  question 
of  the  court's  jurisdiction,  and  must  now  abide  by  its  waiver. 

This  general  rule  is  so  well  established,  and  has  been  so  often 
laid  down  by  this  and  other  courts,  that  we  think  it  is  only 
necessary  for  us  to  state  the  rule  in  the  language  of  this  court 
in  the  case  of  Tyler  v.  Moses,  13  App.  D.  C.,  428,  443,  which 
cited  Raynes  v.  Dumont,  130  U.  S.,  354,  395,  and  said : 

"In  that  case  it  was  said  by  the  Chief  Justice  that: 
'The  rule  as  stated  in  1  Daniel's  Chancery  Practise,  555, 
is  that  if  the  objection  of  want  of  jurisdiction  in  equity 
is  not  taken  in  proper  time,  namely,  before  the  defendant 
enters  into  his  defense  at  large,  the  court  having  general 


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HOW  TO  DO  LAW  OFFICE  STENOGRAPHY 

jurisdiction,  will  exercise  it;  and  in  a  note  on  page  550, 
many  cases  are  cited  to  establish  that,  if  a  defendant  in 
a  suit  of  equity  answers  and  submits  to  the  jurisdiction 
of  the  court,  it  is  too  late  for  him  to  object  that  the  plain- 
tiff has  a  plain  and  adequate  remedy  at  law.  This  objec- 
tion should  be  taken  at  the  earliest  opportunity.'  ' 

Assuming,  however,  for  the  purposes  of  argument,  that  ap- 
pellant had  actually  and  seasonably  raised  the  jurisdictional 
question  by  a  motion  to  dismiss  the  bill  of  complaint,  would 
its  objection  have  been  well  taken  ?  We  answer,  no.  Do  the 
eleven  cases  cited  by  appellant's  counsel  on  page  10  of  their 
brief  support  their  contention  ?  Again,  we  answer,  no. 

"We  note  counsel  state  they  have  "  refrained  from  citing 
these  cases  at  large."  Is  this  restraint  due  to  the  fact  that 
consideration  and  analysis  of  these  eleven  cases  discloses  that 
many  of  them  are  not  applicable  to  the  facts  in  the  case  at 
bar,  and  that  the  pertinent  cases  lean  strongly  to  our  view? 
We  think  so,  and  to  show  the  reason  for  our  belief  we  will  now 
take  up  and  discuss  these  eleven  cases,  one  by  one,  in  the  order 
cited. 

In  the  cose  of  Buckley  v.  Welch,  31  Conn.,  339  (erroneously 
cited  by  appellant  as  31  Com.),  the  complainant  deposited 
with  a  savings  association  stocks  and  bonds  as  collateral  for 
promissory  notes  due  the  association,  which  thereafter  sold 
the  collateral  and  sued  the  complainant  at  law  on  the  notes. 
The  latter  then  filed  his  bill  in  equity  asking  the  court  to 

"order  an  application  of  the  damages  occasioned  to  him 
by  the  conversion  and  misappropriation  of  said  securi- 
ties *  *  *  in  liquidation,  offset  and  answer  to  the  claims 
of  said  trustees  on  said  notes  in  suit,  and  to  enjoin  said 
trustees  against  the  prosecution  of  said  action." 

The  court  held  that  the  whole  transaction  was  already  being 
litigated  in  the  law  court,  and  said : 

"So  far  as  we  can  ascertain  from  the  bill,  the  petitioner 
has  an  adequate  remedy  for  the  protection  and  vindica- 
tion of  his  rights  in  the  action  at  law  now  pending  in 

158 


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159 


HOW  TO  DO  LAW  OFFICE  STENOGRAPHY 


court.    The  petitioner  does  not  ask  for  either  a  discovery 
or  an  account." 

In  Roland  v.  Bank,  135  Pa.  St.,  598,  one  Boffemyer  exe- 
cuted to  the  bank  his  note  for  $1,000,  and  deposited  at  the 
same  time  with  the  bank,  as  collateral  security,  ten  shares  of 
stock.  The  evidence  established  that  the  stock  had  a  market 
value  of  $124  per  share  in  the  open  market,  and  that  it  was  sold 
at  that  price,  and  that  the  proceeds  of  sale,  over  and  above  the 
amount  required  to  pay  the  $1,000  note,  were  applied  in  part 
payment  of  an  overdue  and  protected  note  of  $315  held  by  the 
bank,  on  which  Boffemyer  was  an  endorser.  The  complain- 
ant's bill  was  to  compel  the  defendant  to  surrender  the  ten 
shares  of  stock,  or  a  like  number  of  shares,  on  the  payment 
of  the  $1,000  note,  but  the  court  held  there  was  no  ground  for 
equitable  relief,  as  the  testimony  showred  that  the  stock  had  a 
known  market  value  and  that  it  was  sold  for  that  market 
value.  There  was  no  question  of  fraud,  inadequate  price, 
discovery  or  accounting  involved. 

Mather  v.  Bennett,  9  Gushing,  175,  (Mass.  1849).  The 
facts  are  not  similar,  and  the  case  is  so  meagerly  reported  that 
it  is  difficult  to  see  the  precise  ground  upon  which  the  con- 
clusion of  the  court  was  based. 

In  Hayward  v.  Bank,  96  U.  S.,  611,  the  collateral  was  worth 
$70  per  share  at  the  time  of  the  sale,  but  it  was  bought  in  by 
the  bank  officials  at  $87  to  protect  the  bank,  and  the  complain- 
ant waited  for  four  years,  with  knowledge  of  the  sale,  before 
filing  suit  to  upset  the  sale.  The  Court,  while  holding  there 
was  no  ground  for  equitable  relief,  as  complainant  had  suf- 
fered no  loss,  dismissed  complainant's  bill  on  the  ground  that 

"He  must  be  held  to  have  waived  and  abandoned  the 
right,  if  any  he  had,  to  impeach  the  transaction. ' ' 

The  facts  in  the  case  of  Larcombe  v.  Forestall,  123  U.  S., 


160 


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161 


HOW  TO  DO  LAW  OFFICE  STENOGRAPHY 

562,  are  not  similar  because  there  were  two  sales  of  the  col- 
lateral and  the  case  turned  on  the  second  sale,  and  in  regard 
to  the  second  sale  there  was  no  tender  to  redeem,  the  col- 
lateral sold  for  their  fair  market  value,  and  there  was  no  al- 
legation of  fraud  or  unfairness  in  the  sales  of  the  collateral, 
the  court  saying,  "No  attempt  is  made  to  impeach  the  fairies 
of  these  sales."  The  evidence  showed  that  the  bonds  (the 
collateral)  were  sold  by  the  defendants  and  bought  in  by  them 
at  the  same  time.  Then  after  this  pretended  sale,  there  were 
negotiations  and  even  a  suit  between  the  parties,  in  conse- 
quence of  which  the  complainants  (the  pledgors)  endorsed  the 
bonds  for  the  purpose  of  having  them  sold  by  the  defendants, 
and  the  bonds  were  then  sold  at  various  times  to  strangers. 
The  complainants  then  asked  the  equity  court  to  set  aside 
both  sales  and  to  compel  defendants  to  surrender  the  collateral 
to  the  complainants.  The  court  held  there  was  no  ground  for 
equitable  relief,  as  complainants'  remedy,  if  any,  was  at  law. 
It  will  be  noticed,  however,  the  court  used  the  following  lan- 
guage in  referring  to  the  first  sale  (p.  567)  : 

"As  to  the  question  of  intentional  fraud  in  the  first 
sale  of  the  bonds,  it  is  repelled  by  the  testimony  of  the 
members  of  the  firm  of  Forestall 's  Sons,  and  yet  the 
transaction  is  one  which  it  might  be  difficult  to  sustain 
in  a  court  of  equity.  We  do  not  feel,  however,  called 
upon,  in  view  of  the  other  facts  in  the  case,  to  decide 
this  question. 

"If  the  complainants  had  chosen  to  stand  upon  their 
rights,  or  the  rights  of  the  bank,'  growing  out  of  the  fraud 
in  the  first  sale,  it  may  be  well  to  consider  what  course 
they  should  have  pursued. ' ' 

This  language  far  from  supports  appellant's  contention.  In 
fact,  it  can  be  read  as  a  strong  intimation  that  the  pledgors 
could  have  maintained  a  bill  in  equity  arising  out  of  the  first 
transaction  if  they  had  not  waived  their  rights  to  do  so  by  their 
conduct  in  the  second  transaction.  After  holding  there  was  a 
waiver  of  complainants'  right  to  sue  on  the  first  sale,  the 
court  ruled  that  the  complainants  had  no  standing  in  equity 
because  they  had  consented  to  this  second  sale,  and  that  their 
remedy,  in  reference  to  the  proceeds  of  the  second  sale,  was 
at  law. 

162 


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163 


HOW  TO  DO  LAW  OFFICE  STENOGRAPHY 


Flowers  v.  Sproule,  2  Marsh  (Ky.  1819),  509,  is  not  per- 
tinent to  the  case  at  bar,  as  the  property  in  dispute  was  not 
negotiable  paper  but  slaves,  and  the  case  was  not  on  the  ques- 
tion whether  a  pledger  can  maintain  suit  in  equity  against  a 
pledgee,  as  the  court  held  that  the  slaves  had  not  been  mort- 
gaged nor  pledged,  but  that  they  had  been  conditionally  sold. 

Section  431  (cited  by  appellant)  of  Jones  on  Collateral 
Securities,  is  in  full  as  follows : 

"A  bill  in  equity  will  not  lie  by  a  pledgee  against  one 
entrusted  with  property  for  the  purpose  of  selling  it, 
upon  his  refusal  to  pay  over  the  proceeds  to  the  pledgee ; 
for  there  is  a  complete  remedy  by  an  action  at  law  for 
money  had  and  received." 

We  fail  to  perceive  how  this  section  is  in  point,  as  it  deals 
with  actions  brought  by  the  pledgee  after  parting  with  the 
pledge,  and  the  instant  case  was  brought  by  a  pledgor.  The 
author,  however,  is  authority  for  the  doctrine  that  a  bill  in 
equity  will  lie  by  a  pledgor  against  a  pledgee. 

Taylor  v.  Turner,  87  111.,  296,  is  not  in  point,  as  it  was  a 
case  of  grain  being  delivered  to  a  commission  merchant  to  be 
sold;  and  there  was  no  question  of  relation  of  pledgor  and 
pledgee  involved. 

Appellant's  brief  does  not  cite  the  volume  number  of  CYC, 
but  we  take  it  to  mean  Vol.  31  on  the  subject  of  "Pledges." 
The  pages  cited  by  appellant  discuss  the  rights  of  pledgers 
to  maintain  actions  at  law  against  pledgees,  but  do  not  say 
that  they  cannot  also  maintain  suits  in  equity. 

Glidden  v.  Bank,  53  Ohio  St.,  588,  was  an  action  at  law. 
The  bank  sued  Glidden  for  a  balance  due  on  his  note  after 
deducting  from  the  face  of  the  note  the  sum  realized  by  the 
sale  by  the  bank  of  some  iron  pledged  to  the  bank  by  Glidden 
as  collateral  for  his  note. 

The  case  of  Rozer  v.  May,  41  Wash.,  121,  is  not  in  point 


164 


.>.U^A.. 


a!- 


165 


HOW  TO  DO  LAW  OFFICE  STENOGRAPHY 


as  it  does  not  touch  at  all  on  the  question  of  pledges  or  col- 
lateral, but  simply  holds  that  equity  will  take  jurisdiction  to 
enable  the  proper  parties  to  recover  possession  of  family  por- 
traits. Nowhere  does  it  rule  or  intimate  one  way  or  the  other 
as  to  the  right  of  a  pledger  to  maintain  an  equity  suit  against 
the  pledgee. 

Having  disposed  of  all  appellant's  cited  cases,  we  will  now 
review  a  few  of  the  many  authorities,  showing  that  in  the  case 
at  bar  the  appellee  can  undoubtedly  maintain  her  bill  in  equity 
against  the  pledgee.  In  this  connection,  it  must  be  borne  in 
mind  that  the  complainant  has  not  only  asked  for  the  sur- 
render of  the  pledge,  after  making  the  proper  tender  to  pay 
the  collateral  note,  but  prays  for  an  accounting,  injunction, 
discovery,  and  general  relief.  An  action  at  law  would  not 
have  afforded  her  such  a  complete  remedy,  and  where  equity 
can  grant  a  more  complete  remedy  than  can  be  had  at  law, 
it  will  take  jurisdiction.  As  was  said  in  the  recent  case  of 
Lyon  v.  Russell,  41  App.  D.  C.,  554 : 

"Some  question  is  also  made  as  to  the  right  of  the 
appellee  to  be  heard  in  a  court  of  equity,  although  no 
such  question  was  raised  below.  It  is  apparent,  we  think, 
from  the  statement  of  the  case,  that  a  more  complete 
remedy  can  be  had  in  equity  than  at  law,  and  hence  this 
point  was  not  well  taken." 

Hart  v.  Ten  Eyck,  2  Johns.  Ch.,  states : 

"A  bill  in  chancery  to  redeem  stock,  bonds,  plate,  or 
other  securities,  or  personal  property,  pledged  for  the 
payment  of  debts,  has  frequently  been  sustained. ' ' 

Merrill  v.  Houghton,  51  N.  H,  61 : 

"A  bill  in  equity  is  an  appropriate  remedy  to  establish 
a  right  to  a  return  of  the  securities  or  to  compensation. " 

Bryson  v.  Eaynor,  25  Md.,  424 : 


166 


V 


-V 


1/7 


167 


HOW  TO  DO  LAW  OFFICE  STENOGRAPHY 

"But  he  contends,  through  his  counsel,  that  if  the  ap- 
pellant is  aggrieved  his  remedy  was  ample  at  law,  and 
that  equity  can  afford  him  no  relief.  This  position  is  based 
upon  the  technical  distinction  between  a  mortgage  and  a 
pledge,  it  being  conceded  that  if  the  stock  had  been  mort- 
gaged the  right  to  redeem  in  equity  would  be  indisputable, 
but  as  the  relation  between  bailor  and  bailee  is  a  legal  re- 
lation, and  only  a  qualified  property  passed  to  the  bailee 
by  the  transfer  of  the  stock  to  him,  the  remedy  for  any 
violation  of  the  contract  or  tortious  dealing  with  the 
property  is,  at  law,  by  an  action  of  trover  or  assumpsit; 
and  the  learned  Judge  below,  adopting  this  view,  and 
considering  that  there  was  nothing  in  the  case  that  could 
properly  work  a  change  of  the  jurisdiction,  dismissed 
the  bill  of  the  complainant  on  this  ground.  In  this,  we 
think,  he  committed  an  error,  and  that  the  complainant 
was  entitled  to  the  relief  sought  as  to  the  ten  shares  of 
stock.  *  *  *  Equity  alone,  in  such  a  case,  can  afford 
relief." 

This  precise  question  under  discussion  has  previously  been 
before  this  Court  in  the  case  of  Bank  v.  Construction  Co.,  17 
App.  D.  C.,  524: 

"The  suit  is  for  discovery  and  an  accounting,  and  for 
the  cancellation  and  surrender  of  the  notes.  It  does  not 
appear  that  the  appellee  knew  precisely  what  amount  of 
money  was  received  on  the  certificates.  *  *  *  On  the 
theory  that  the  certificates  were  still  in  pledge  until  the 
date  of  payment,  and  that  there  had  been  no  valid  sale  of 
them  to  anyone,  the  complainant  was  plainly  entitled  to  a 
discovery  and  accounting ;  and  this  could  properly  be  had 
through  a  court  of  equity." 

Moreover,  appellant's  contention  that  appellee's  action 
' '  should  have  been  one  at  law  for  the  conversion  of  the  prop- 
erty" loses  sight  of  the  fact  that 

"so  long  as  the  Trust  Company  (the  pledgee),  after  its 
invalid  sale  and  purchase  of  the  bonds  (the  pledge),  re- 
tained both  the  note  and  bonds  in  its  own  possession,  and 
was  in  a  position  to  have  surrendered  the  bonds  to  the 
Hardwood  Company  (the  pledgor)  or  its  sureties,  upon 

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169 


HOW  TO  DO  LAW  OFFICE  STENOGRAPHY 


tender  of  payment  of  the  note,  although  claiming  to  hold 
the  bonds  as  purchaser,  there  was,  under  the  authorities, 
no  wrongful  appropriation  of  the  bonds  which  could 
have  been  treated  by  the  Hardwood  Company  as  a  con- 
version." 214  Fed.,  673,  decided  June,  1914. 


ARGUMENT  ON  SECOND  ASSIGNMENT   OF   ERROR 

Before  establishing  the  fact  that  there  was  a  valuable  con- 
sideration for  the  agreement  or  understanding  between  the 
bank  and  appellee's  counsel,  let  us  see  how  the  lack  of  con- 
sideration would  affect  that  understanding,  because  we  main- 
tain that,  if  the  testimony  establishes  that  there  was  such  an 
understanding  or  agreement,  it  is  immaterial  whether  there 
was  or  was  not  any  consideration  for  it.  And  in  this  aspect  of 
the  case,  let  us  not  be  confused  by  phraseology  or  legal  defini- 
tions, because  ' '  contract, "  ' '  agreement "  or  "  understanding, ' ' 
in  their  strict  legal  sense,  necessarily  imply  a  supporting  con- 
sideration. But  here,  when  we  speak  of  an  " agreement"  or 
"understanding,"  we  mean  an  arrangement  between  the  par- 
ties that  the  bank  would  waive  its  right  to  dispose  of  the  col- 
lateral security ;  that  is,  a  waiver  by  the  bank  of  the  right  of 
forfeiture.  Now,  keeping  in  mind  this  distinction  between  a 
waiver  and  an  agreement,  the  second  assignment  of  error  falls 
to  the  ground  without  a  single  case  cited  to  support  it. 
And  in  this  connection,  let  us  keep  in  mind  the  beneficent 
policy  of  the  courts  to  always  rule  for  a  waiver  of  forfeiture 
whenever  possible.  It  was  said  by  Mr.  Justice  Bradley,  in 
Insurance  Co.  v.  Eggleson,  96  U.  S.,  577,  "Forfeitures  are  not 
favored  in  the  law";  and  the  "courts  are  always  prompt  to 
seize  hold  of  any  circumstances  that  indicate  an  election  to 
waive  a  forfeiture,  or  agreement  to  do  so,  on  which  the  party 
has  relied  and  acted."  And  that  such  a  waiver  needs  no  con- 
sideration to  make  it  binding  on  the  party  waiving  when  the 
other  party  has  relied  and  acted  on  the  waiver,  is  clearly 
established  in  the  following  cases : 


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HOW  TO  DO  LAW  OFFICE  STENOGRAPHY 

In  Bailey  v.  Loan  Co.,  65,  N.  Y.  Supp.,  330  (affirmed  in 
165  N.  Y.,  672),  the  court  quoted  with  approval  Toplitz 
v.  Bauer,  161  N.  Y.,  325,  as  follows: 

"The  pledgee  doubtless  has  the  right  to  exact  strict 
performance  of  the  contract  according  to  its  terms,  and 
upon  default  in  payment  of  the  debt  at  the  time  stipulated 
he  may,  under  a  contract  like  this,  dispose  of  the  pledge. 
But  if  he  waives  the  right  to  exact  strict  performance, 
and  gives  time  and  indulgence  to  the  debtor,  he  cannot 
recall  this  waiver,  at  his  option,  without  notice  to  the 
pledgor,  to  the  end  that  the  latter  may  have  an  opportunity 
of  protecting  the  pledge.  The  good  faith  which  the  law 
exacts  from  a  person  dealing  with  trust  property  will  not 
permit  the  pledgee,  after  having  once  waived  the  for- 
feiture or  the  right  to  dispose  of  the  pledge  upon  default 
of  payment  at  the  prescribed  time,  to  suddenly  stop  and 
insist  upon  the  forfeiture  for  the  non-payment  of  the 
debt,  when  the  party  is  unprepared  to  redeem." 

And  in  Toplitz  v.  Bauer,  supra,  it  was  also  said : 

' '  It  must  be  conceded  at  the  outset  that  no  legal  exten- 
sion of  the  time  for  the  payment  of  the  note  was  given, 
for  the  reason  that  the  promise  in  that  respect  was  not 
supported  by  a  sufficient  consideration.  *  *  But  the 
extension  of  the  time  for  the  payment  of  a  debt,  which 
must  be  supported  by  a  sufficient  consideration,  must  not 
be  confused  with  a  waiver  of  the  right  to  forfeit  the  pledge 
without  previous  notice  to  the  pledgor  or  those  who  repre- 
sent him,  or  were  interested  in  the  pledge. ' ' 

In  Wyckoff  v.  Bank,  119  N.  Y.  Supp.,  937,  the  Court  held : 

' '  Such  a  contract  is  of  such  class  that  the  right  to  sell 
the  security  for  the  payment  of  the  debt  may  be  waived 
by  the  mere  extension  of  the  time  without  any  new  or 
independent  consideration,  and  also  by  the  conduct  of  the 
parties." 

The  language  of  the  Court  in  Moses  v.  Grainger,  106  Tenn., 

7,  is: 

172 


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173 


HOW  TO  DO  LAW  OFFICE  STENOGRAPHY 


"The  acceptance  of  payments  from  the  maker  of  the 
original  note  at  different  times  after  maturity  and  the 
indulgence  given  to  him  for  nearly  four  years  lulled  him 
into  a  sense  of  security.  He  had  a  right  to  suppose  that 
•  under  these  circumstances,  and  after  his  note  had  been 
reduced  to  a  trifling  balance,  that  before  exercising  the 
right  to  sell,  a  demand  would  be  made  upon  him  to  re- 
deem his  collateral  *  *  *  The  power  of  sale  must  be 
exercised  with  a  view  to  the  interest  of  the  pledgor  as 
well  as  of  the  pledgee,  and  the  sale  must  not  be  forced 
for  barely  enough  money  to  secure  the  payment  of  the 
debt.  *  *  "*  We  think  the  sale  complained  of  was  in  dis- 
regard of  these  equitable  principles,  and  if  it  had  been 
made  at  the  instance  of  the  original  holder,  would  not 
have  been  tolerated  by  a  court  of  conscience." 

Leaving  the  waiver  aspect  of  this  assignment  of  error,  we 
will  now  meet  appellant  squarely  on  the  contention  that  there 
was  a  valuable  consideration  for  the  agreement,  for,  as  was 
said  in  Wyckoff  v.  Bank,  supra,  l '  If  the  right  to  sell  the  col- 
lateral security  can  be  waived  by  mere  agreement  without  con- 
sideration, it  surely  can  be  waived  by  a  new  and  independent 
contract  founded  upon  valuable  consideration." 

Let  us  see  what  constituted  the  consideration  in  the  case  at 
bar.  At  the  time  of  her  husband's  death,  the  bank  held, 
among  others,  a  note  for  $55,  for  which  appellee  was  an  ac- 
commodation maker  for  her  husband,  James  L.  Gross,  who 
was  the  endorser  thereof.  Mrs.  Gross  was,  of  course,  a  married 
woman  when  she  signed  the  note  for  her  husband.  She  was 
under  no  legal  liability  to  make  any  payment  to  the  bank, 
out  of  her  own  funds,  on  this  note.  She  was  not  liable  to  the 
bank  on  the  note,  and  yet,  shortly  after  her  husband's  death, 
without  being  advised  as  to  her  non-liability  in  the  premises, 
she  took  up  this  note  by  giving,  as  maker,  a  renewal  note  for 
the  same  amount,  on  which  she  was  not  liable  to  the  bank, 
as  she  was  still  an  accommodation  party,  having  received  no 
consideration  therefor.  It  is  in  the  testimony  (Rec.  21)  that 


174 


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175 


HOW  TO  DO  LAW  OFFICE  STENOGRAPHY 


appellee 's  counsel,  after  this  renewal  note  was  due,  in  order  to 
settle  the  entire  matter  of  the  Gross  notes  at  the  bank,  went 
to  the  bank  with 

"the  check  for  $20  of  Mr.  Brown,  and  Mrs.  Gross'  check 
for  $36,  being  the  same  check  identified  (Rec.  19)  by 
Mrs.  Gross,  in  order  to  make  up  the  amount  of  the  note 
which  Mrs.  Gross  had  given  a  few  days  after  the  death 
of  her  husband  to  the  bank;  that  the  note  was  for  $55 
and  with  interest  and  protest  fees  amounted  to  $56 ;  that 
this  note  had  been  given  by  Mrs.  Gross  as  a  renewal  note 
for  a  note  on  which  she  was  the  accommodation  party ; 

*  *  *  that  witness  wanted  to  have  the  interest  on  the 
Brown  note  credited  on  Mrs.  Gross'  note;  that  the  con- 
versation was  that  she,  Mrs.   Gross,  was  not  liable  as 
endorser  on  her  husband's  note;  that  witness  sought  to 
have  the  interest  on  the  Brown  note  applied  upon  Mrs. 
Gross'  note  for  $56,  and  to  give  Mrs.  Gross'  check  for 
$36  and  thus  take  up  the  note;   that  this  was  done; 

*  *  *  that  at  that  time  it  was  understood  and  agreed 
between  Mr.  Steadman  and  witness  that  *  *  *  the  inter- 
est on  the  Brown  note  would  be  credited  on  the  principal 
and  interest  of  Mr.  Gross'  indebtedness,  and  take  care  of 
itself  until  the  interest  on  the  Brown  note,  and  if  neces- 
sary, the  principal  on  the  Brown  note,  would  wipe  out 
the  indebtedness  of  Mr.  Gross  to  the  bank." 

That  the  $55  renewal  note  was  paid  in  the  manner  stated 
is  also  shown  by  the  significant  entry  on  the  books  of  the 
bank  (Rec.  29)  in  the  handwriting  of  Steadman,  the  then 
president  of  the  bank,  reading  "Check  of  Mary  A.  Gross,  $36. 
Check  of  Harry  L.  Brown  $20."  That  the  bank  considered 
this  $55  renewal  note  as  part  of  deceased's  liability  to  the 
bank  protected  by  the  Brown  note,  rather  than  a  liability  due 
by  his  wife,  is  shown  by  the  fact  that  it  permitted  the  Brown 
interest  to  be  credited  as  part  payment  of  the  renewal  note; 


176 


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177 


HOW  TO  DO  LAW  OFFICE  STENOGRAPHY 


in  fact,  the  president  of  the  bank  testified  that  he  "was 
afraid"  the  payment  "might  be  confounded"  (Rec.  30),  and 
hence  he  personally  made  the  entry  on  the  book  of  the  bank 
because  he  did  not  want  it  "confounded  with  the  payment  by 
Mr.  Gross  or  Mrs.  Gross"  (Rec.  32),  as  "the  bank  proposed 
to  collect  it  right  along  as  long  as  it  was  there  and  credit  it 
upon  the  indebtedness  of  Mr.  Gross  to  the  bank"  (Rec.  33). 

Now,  since  the  appellant,  after  discussing  whether  .Mrs. 
Gross  was  liable  on  that  renewal  note,  accepted  her  personal 
check  for  the  balance  of  $36  of  that  renewal  note,  how  can 
appellant,  in  all  fairness,  contend  there  was  no  consideration 
for  the  agreement?  From  the  circumstances  surrounding  the 
transaction  of  this  payment,  especially  that  the  payment  was 
made  by  appellee's  counsel,  with  knowledge  that  Mrs.  Gross 
signed  the  original  note  as  an  accommodation  maker  and  as  a 
married  woman,  is  it  reasonable  to  believe  that  she  voluntarily 
presented  the  bank  with  $36,  without  receiving  some  cor- 
responding benefit  either  to  herself  or  to  her  husband's  estate  .' 
She  paid  $36  and  received  therefore  the  promise  of  extension 
of  time  on  her  husband's  indebtedness,  and  we  hardly  think 
it  is  necessary  for  us  to  cite  authorities  to  this  court  that 
money  constitutes  a  valuable  consideration. 

This  brings  us  to  the  last  assignment  of  error,  namely,  the 
existence  and  nature  of  the  agreement  or  understanding. 

ARGUMENT  ON  THIRD  ASSIGNMENT  OF  ERROR 

First,  we  would  call  your  Honor's  attention  to  the  fact  that 
you  are  asked,  under  this  assignment,  to  review  the  trial  court 
on  a  finding  of  fact.  Let  it  be  borne  in  mind  that  in  this  case 
the  testimony  was  not  taken  before  an  examiner,  but  was  heard 
orally  in  open  court,  where  the  presiding  justice  had  the 
fullest  opportunity  to  observe  the  conduct  and  demeanor  of 
the  witnesses  and  their  fairness  or  lack  of  fairness.  He  heard 
all  the  evidence,  questions  and  answers,  of  which  the  printed 


178 


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179 


HOW  TO  DO  LAW  OFFICE  STENOGRAPHY 

record  is  only  a  summary.  We  think,  with  all  due  deference 
to  your  Honors,  that  surely  the  Justice  was  in  a  better  position 
to  determine  the  weight  of  evidence  and  to  pass  upon  the 
credibility  of  the  witnesses.  In  the  language  of  the  court 
in  the  case  of  Calkins  v.  Worth,  215  111.,  78  (equity  suit) : 

"We  think  there  is  evidence  sufficient  to  support  the 
decree.  The  trial  court  saw  and  heard  the  witnesses  and 
was  better  capable  of  judging  as  to  the  weight  to  be  given 
their  evidence,  and  unless  the  decree  is  manifestly  against 
the  weight  of  the  evidence,  the  decree  will  not  be  dis- 
turbed where  there  is  a  conflict  in  the  evidence. ' ' 

And  in  Smith  v.  Anderson,  8  Tex.  Civ.  App.,  188,  which  was 
an  equity  suit  by  a  pledgor  against  a  pledgee,  the  Appellate 
Court  said: 

"It  was  the  duty  of  the  trial  court  to  pass  upon  the 
credibility  of  the  evidence,  determine  its  value,  and  con- 
clude what  facts  were  established  by  it ;  and  when  it  has 
done  so,  such  conclusions,  if  there  is  evidence  to  support 
them,  *  *  *  will  not  be  disturbed  by  this  court. ' ' 

And  we  understand  this  to  be  the  rule  of  this  court. 

There  is,  however,  sufficient  and  abundant  evidence  in  the 
record  to  justify  the  trial  court  in  finding  the  existence  of  an 
agreement.  The  main  points  of  this  evidence  we  have  set  out 
in  the  following  four  paragraphs : 

1.  The  fact  of  the  payment  of  a  valuable  consideration  by 
appellee  to  appellant,  as  shown  in  our  argument  upon  the 
second  assignment  of  error. 

2.  The  testimony  of  appellee's  counsel  (Rec.  21)  : 

' '  that  at  the  time  it  was  understood  and  agreed  between  Mr. 
Steadman  and  witness  that,  as  the  indebtedness  of  ^\Ir. 
Gross  to  the  bank  was  of  course  much  less  than  the  Brown 
note,  the  interest  on  the  Brown  note  would  be  credited 
on  the  principal  and  interest  of  Mr.  Gross'  indebtedness, 
and  take  care  of  itself  until  the  interest  on  the  Brown 
note,  and,  if  necessary,  the  principal  on  the  Brown  note, 
would  wipe  out  the  indebtedness  of  Mr.  Gross  to  the 
bank," 

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181 


HOW  TO  DO  LAW  OFFICE  STENOGRAPHY 


which  was  corroborated  by  witness'  letter  of  May  24,  1911 
(Rec.  22),  and  the  bank's  reply  of  May  26,  1911  (Rec.  22), 
and  his  testimony  that  "he  did  nothing  further  in  regard  to 
the  matter  until  the  spring  of  1913"  (Rec.  22),  stating: 

"It  was  understood  that  the  bank  should  continue  to 
collect  on  the  note  and  credit  said  collections  on -the  in- 
debtedness of  James  L. -Gross  until  the  same  was  paid." 

The  uncontradicted  fact  that  he,  the  attorney  for  the  estate, 
charged  with  a  duty  to  his  client,  "did  nothing  further  in 
regard  to  the  matter  until  the  spring  of  1913,"  cannot  be  ex- 
plained except  by  his  reliance  on  the  existence  of  the  agree- 
ment. Moreover,  his  reliance  was  acquiesced  in  for  two  and 
a  half  years  by  the  appellant. 

3.  The  witness  Steadman  on  cross-examination  testified  that 
after  McKelway's  visit  to  the  bank  on  October  27,  1909  (Rec. 
19,  24,  33),  there  was  from  this  date  on  no  payment  on  the 
notes  for  a  period  of  two  and  a  half  years  (Rec.  33),  and 
that  "the  interest  had  been  paid  regularly  on  the  Brown 
note"  (Rec.  31).  There  was  no  evidence  adduced  that,  dur- 
ing this  period  of  time,  any  demand  whatsoever  was  made  on 
appellee  or  on  her  counsel  for  any  payment.  That  the  Brown 
interest  paid  to  the  bank  during  this  time  amounted  to  $83, 
and  was  regularly  credited  on  the  Gross  indebtedness,  to  the 
extent  of  keeping  up  the  interest  on  the  $200  balance  of  the 
collateral  note  and  paying  the  interest  and  reducing  the  prin- 
cipal of  the  Corwin  note  of  $75,  can  be  seen  from  an  inspection 
of  the  endorsements  (Rec.  30,  31)  of  the  Brown  note,  the  en- 
dorsements of  the  collateral  note  (Rec.  28),  and  the  balance 
due  (Rec.  36)  of  $24  on  the  said  Corwin  note.  This  long 
course  of  dealing,  namely,  in  crediting  the  Brown  interest  on 
the  Gross  indebtedness  without  making  any  demand  on  the 
estate  for  additional  payments,  is  exactly  in  accordance  with 


182 


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183 


HOW  TO  DO  LAW  OFFICE  STENOGRAPHY 


appellee's  contention  for  the  existence  of  an  agreement  to 
that  eft'ect,  and  is  also  in  accordance  with  the  bank's  letter  of 
May  26,  1911  (Rec.  22),  showing  that  at  that  time  the  in- 
debtedness had  been  reduced  to  $244. 

4.  There  is  not  only  no  testimony  in  the  record  attempting 
to  show  that  between  the  date  of  the  agreement,  October  27, 
1909,  and  the  time  of  the  alleged  sale  of  the  collateral-in  March, 
1912,  any  demand  was  made  on  appellee  or  her  counsel  for 
any  payments  in  addition  to  the  Brown  payments  (Rec.  37), 
but  we  do  have  the  admission  of  the  witness  Steadman,  on 
cross-examination  (Rec.  34,  35),  that  the  nptes  held  by  the 
bank  on  which  Gross  was  liable  (one  of  them  a  "demand" 
note  and  the  other  due  September  28,  1909)  were  never  pro- 
bated against  the  Gross  estate.  This  failure  on  the  part  of  a 
bank  to  probate  its  claims  against  the  estate  of  a  deceased 
debtor  is  a  circumstance  constituting  strong  evidence  that  this 
bank  had  agreed  to  let  those  claims  be  wiped  out  by  the  Brown 
payment  instead  of  proceeding  against  the  estate. 


CONCLUSION 

Much  stress  has  been  laid  by  appellant,  in  the  testimony  and 
in  its  brief,  upon  the  question  whether  appellee's  counsel 
stated  previously  to  testifying  in  the  case  that  he  had  nui< li- 
the agreement,  not  with  Steadman,  as  contended  in  his  testi- 
mony, but  with  Phillips.  We  think  the  question  hardly  war- 
rants so  much  importance  being  attached  to  it,  as  it  could 
easily  be  that,  when  McKelway  called  at  the  bank  on  October 
27,  1909,  he  did  not  know  either  Steadman  or  Phillips  per- 
sonally, and  his  recollection  of  the  matter  was  that  the  agree- 
ment was  made  with  an  official  of  the  bank,  and  then  when  he 
received  the  bank's  letter  of  May  26,  1911,  signed  by  Phillips 
as  cashier,  and  the  letter  of  June  17,  1913,  signed  by  the  same 
party  as  manager  of  the  Fourteenth  Street  Branch,  he  natur- 
ally retained  the  same  name,  Phillips,  in  his  memory,  and 
hence  might  have  stated  the  agreement  had  been  made  with 


184 


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HOW  TO  DO  LAW  OFFICE  STENOGRAPHY 


Phillips.  He  testified  (Rec.  24)  that  at  the  time  of  the  lender 
he  "did  not  know  that  he  had  ever  seen  Mr.  Phillips  before 
that  occasion  to  know  him."  From  that  time  on  he  knew  lluil 
Phillips  was  not  the  official  with  whom  the  agreement  had  been 
made,  but  when  he  next  saw  Steadman  he  easily  identified 
him  as  the  bank  official  with  whom  he  had  made  the  agreement . 
This  same  explanation  applies  also  to  the  letter  (Rec.  25), 
which  was  written  before  his  visit  to  the  bank  to  make  the 
tender,  all  of  which  is  borne  out  by  the  fact  that  the  name 
of  the  bank  official  was  "purposely  left  out  of  the  bill" 
(Rec.  25). 

In  regard  to  the  alleged  notice  (Rec.  29)  claimed  to  have 
been  mailed  to  appellee  by  the  bank,  her  positive  testimony  is 
"that  she  did  not  receive  that  letter,"  and  "she  had  no  notice 
of  the  matter  until  Mr.  McKelway  notified  her,"  and  "she 
received  a  great  many  letters  about  her  husband's  affairs 
after  his  death,  and  paid  a  great  deal  of  attention  in  sending 
all  she  received  immediately  to  Mr.  McKelway,"  and  that  she 
"had  never  sent  a  letter  similar  to  that  of  February  9,  1909 
(1912)  to  her  counsel,  as  she  had  never  received  such  a 
letter"  (Rec.  20)  ;  and  appellee's  contention  is  that  the  "letter 
of  the  17th  of  June,  1913,  was  the  first  notice  of  any  kind 
whatsoever  that  was  received  by  this  complainant  or  her  at- 
torney. ' ' 

Appellant  introduced  testimony  tending  to  show  that  the 
notice  was  written  and  mailed  to  appellee,  but  we  will  dismiss 
this  testimony  with  the  positive  statement  of  appellee  to  the 
effect  that  she  "did  not  receive  that  letter,"  and  with  the 
suggestion  that  the  Justice  observed  and  heard  the  witnesses 
on  both  sides  and  was  in  a  position  to  determine  the  credi- 
bility of  the  testimony. 

The  presiding  justice  heard  all  the  testimony  in  the  case 
and,  in  addition  to  the  question  of  consideration  and  the  ex- 
istence of  an  agreement,  there  were  many  other  grounds  upon 
which  to  base  his  decree. 

The  fact  that,  although  the  bank  claimed  to  have  sold  the 


186 


HOW  TO  DO  LAW  OFFICE  STENOGRAPHY 


collateral  and  with  the  proceeds  of  sale  to  have  paid  the 
Gross  notes  in  full,  the  witness  Steadman  could  give  no  satis- 
factory reasons  (Rec.  35,  36)  why  the  Gross  notes  were  not 
marked  "Paid,"  or  why  they  were  still  held  by  the  bank,  or 
why  appellee  or  her  counsel  were  not  notified  of  this  alleged 
settlement,  are  circumstances  strongly  pointing  to  the  ex- 
istence of  the  agreement  and  showing  the  general  equities  of 
the  case.  This  secrecy  in  such  a  matter  is  so  at  variance  with 
the  usual  course  of  banking  business  that  it  would  seem  that 
the  bank  was  endeavoring  to  hide — to  cover  up— the  transac- 
tion which  it  knew  was  in  violation  of  the  existing  agreement. 
And,  in  this  connection,  let  it  be  noted  that  the  witness  Phil- 
lips, the  so-called  purchaser,  who,  "at  the  time  was  cashier 
of  the  bank,"  and  the  "only  bidder"  (Rec.  37),  made  the  sig- 
nificant admission  that  the  bank  "was  getting  ready  to  sell 
out,"  and  that  he  discounted  the  note  for  its  face  value, 
$695,  and  "put  the  balance  in  his  own  pocket"  (Rec.  37). 
That  admission  that  the  "bank  was  getting  ready  to  sell  out," 
taken  with  the  secrecy  thrown  around  the  questionable  trans- 
action, makes  the  actions  of  Steadman  and  Phillips  at  that 
time  appear  as  though  they  were  endeavoring  to  hide  the  so- 
called  sale  from  appellee  until  the  Union  Trust  and  Savings 
Bank  took  over  the  assets  of  the  bank,  and  then  Steadman 
could  say  "The  Second  National  Bank  does  not  exist,  its 
charter  having  been  surrendered"  (Rec.  15),  and  Phillips 
could  say  that  "  in  the  due  and  usual  course  of  business,  for 
value  and  before  maturity,  said  note  was  endorsed  to"  the 
Union  Trust  and  Savings  Bank  (Rec.  14). 

Appellee  might  have  been  put  to  considerable  difficulty  in 
establishing  the  real  nature  of  the  transaction  by  which  the 
Union  Trust  and  Savings  Bank  took  over  the  bank,  and  in  re- 
futing any  defense  of  the  Union  Trust  and  Savings  Bank  that 
it  was  "a  T)ona  fide  holder  and  owner  for  value,  before  ma- 
turity, and  without  notice"  (Rec.  10).  if  the  Union  Trust 
and  Savings  Bank  had  not  abandoned  that  defense  rather  than 
produce  its  books  in  open  court  and  show  the  real  nature  of 
the  consolidation. 


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Viewing  all  this,  a  court  of  conscience  may  readily  hold  that 
the  transaction,  with  its  attendant  and  consequent  circum- 
stances, whereby  the  bank  permitted  one  of  its  officials  at 
a  sale  wherein  he  was  the  only  bidder  to  purchase  the  collateral 
for  $230,  and  immediately  transfer  it  to  the  bank  for  its  face 
value,  $695,  and  to  "put  the  balance  in  his  own  pocket,"  was 
of  so  shocking  a  character  that  a  court  of  equity  would  declare 
it  null  and  void,  as  being  in  derogation  of  the  rights  of  the 
pledgor,  and,  therefore,  it  would  grant  the  relief  prayed  for, 
without  passing  upon  the  question  of  the  existence  of  the 
agreement  and  its  consideration. 

Further,  there  is  sufficient  evidence  in  the  record  for  the 
Justice  to  have  held,  without  passing  upon  the  question  of  con- 
sideration, that  the  conduct  of  the  bank,  dealing  with  the 
Gross  indebtedness  as  it  did  for  a  period  of  two  and  a  half 
years,  constituted  a  waiver  of  forfeiture  and,  therefore,  the 
sale  would  not  be  tolerated  by  equity.  Or,  the  trial  court 
could  well  hold  that  the  alleged  transfer  by  the  bank  to  Phil- 
lips and  then  by  Phillips  back  to  the  bank  was  not  a  bona  fide 
sale,  but  "colorable  merely"  and  an  "absolute  nullity." 

We  know  of  no  better  way  to  sum  up  this  case  than  in  the 
language  used  by  the  Justice  in  rendering  his  decision  from 
the  bench  immediately  on  the  close  of  the  hearing  in  the  lower 
court : 

"I  think  enough  has  been  shown  in  this  case  so  that 
the  Court  is  bound  to  understand  and  believe  that  there 
was  an  understanding  and  arrangement  between  the  bank 
and  Mr.  McKelway,  at  least  to  this  extent,  that  the  note 
should  be  treated  as  being  taken  care  of  by  the  larger  note 
and  the  payment  of  interest  thereon,  until  some  actual 
notice  was  given  to  Mr.  McKelway.  I  think  that  is  the 
only  understanding  that  can  be  derived  from  these  cir- 
cumstances. How  easy  it  would  have  been  for  the  bank 
to  have  called  up  Mr.  McKelway  and  said,  "We  sent  a 
formal  notice  to  Mrs.  Gross,  but  we  have  not  had  a  reply, 
and  we  are  afraid  that  she  may  not  have  received  it." 
Here  was  a  little  note  for  $204  and  $24  on  another  note, 
and  here  was  a  big  collateral  note  for  $695,  which  turns 
out  to  have  been  good — every  dollar  of  it — and  at 
that  time,  if  they  had  cared  to  look  into  it,  they  could 

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HOW  TO  DO  LAW  OFFICE  STENOGRAPHY 

have  found  it  was  good.  What  would  just  and  fair  deal- 
ing have  prompted  the  bank  to  have  done  in  those  cir- 
cumstances ?  To  have  sent  a  formal  notice  and  have  sold 
the  note  and  keep  the  proceeds,  or  let  the  cashier 
do  it,  or  to  take  one  moment  and  telephone  Mr.  Mc- 
Kelway?  They  knew,  if  they  ever  gave  a  moment's 
thought  to  it,  that  the  estate  would  not  want  to  sacrifice' 
that  note.  They  knew  that  it  would  be  paid  if  actual 
notice  was  ever  brought  home  to  them,  and  they  must 
have  known,  as  honest  and  reasonable  men,  that  they 
had  not  received  any  notice  that  there  was  to  be  a 
sale  of  it.  I  do  not  see  how  anybody  who  has  listened 
to  this  testimony  can  be  in  doubt  about  that.  That  is 
what  makes  the  case  look  like  sharp  practise.  I  know 
how  easy  it  is  to  get  behind  the  formal  notice  and  the 
terms  and  conditions  of  the  collateral  note,  and  all  of 
that.  But  I  am  talking  now  as  man  to  man.  How  would 
any  one  of  you  have  felt  had  you  been  in  the  position  of 
Mr.  McKelway  and  this  note  had  been  held  there,  three 
times  as  large  as  the  note  it  was  to  secure,  and  perfectly 
good,  with  a  mere  formal  notice  issued  like  this  to  a 
woman,  and  no  reply  coming,  and  you  could  have  been 
notified  by  'phone?  I  do  not  know  just  exactly  what 
occurred  between  Mr.  McKelway  and  the  parties  at  the 
bank.  It  turns  out  that  there  is  no  doubt  Mr.  Steadman 
was  right  there,  either  when  the  talk  was  going  on,  or 
immediately  thereafter,  because  there  is  his  writing  on 
the  book  of  account.  I  am  satisfied  that  talk  took  place 
there  so  that  Mr.  McKelway  was  justified  in  believing 
that  this  matter  would  not  be  sacrificed.  There  was  a 
large  note,  with  the  interest  being  promptly  paid  on  it— 
and  it  was  paid  promptly,  I  think — that  would  more  than 
pay  the  interest  on  the  Gross  note  and  would  be  con- 
stantly cutting  down  the  principal.  The  circumstances 
are  ample  for  the  court  to  find,  and  the  court  does  find, 
that  the  fair  understanding  between  the  bank  and  the  rep- 
resentative of  this  estate  was  that  nothing  should  be  done 
toward  a  foreclosure  of  that  note,  without  some  actual 
notice  to  him. 

"I  think  equity  requires  it:  I  think  the  plainest  kind 
of  honesty  requires  it ;  and,  that  being  the  .case,  I  think 
there  should  be  a  decree  for  the  complainant." 


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193 


HOW  TO  DO  LAW  OFFICE  STENOGRAPHY 

We  respectfully  submit  to  this  Honorable  Court  that  the 
decree  below  should  be  affirmed. 


Attorneys  for  Appellee 


194 


195 


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